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Australia

Within Australia, the term sexual assault is used to describe a variation of sexual offences. This is due to a variety of definitions and use of terminology to describe sexual offences within territories and states as each territory and state have their own legislation to define rape, attempted rape, sexual assault, aggravated sexual assault, sexual penetration or intercourse without consent and sexual violence.

In the State of New South Wales, sexual assault is a statutory offence punishable under s 61I of the Crimes Act 1900. The term "sexual assault" is equivalent to "rape" in ordinary parlance, while all other assaults of a sexual nature are termed "indecent assault".

To be liable for punishment under the Crimes Act 1900, an offender must intend to commit an act of sexual intercourse as defined under s 61H(1) while having one of the states of knowledge of non-consent defined under s 61HA(3). But s 61HA(3) is an objective standard which only require the person has no reasonable grounds for believing the other person is consenting. The maximum penalty for sexual assault is 14 years imprisonment.

Aggravated sexual assault is sexual intercourse with another person without the consent of the other person and in circumstances of aggravation. The maximum penalty is imprisonment for 20 years under s 61J of the Crimes Act.

In the state of Victoria, rape is punishable under s 38 of the Crimes Act 1958, with a maximum penalty of 25 years imprisonment.

In the state of South Australia, rape is punishable under s 48 of the Criminal Law Consolidation Act 1935 (SA) with a maximum term of life imprisonment.

In the state of Western Australia, sexual penetration is punishable under s 325 the Criminal Code Act 1913 with a maximum sentence of 14 years imprisonment.

In the Northern Territory, offences of sexual intercourse and gross indecency without consent are punishable under s 192 of the Criminal Code Act 1983 and punishable with a maximum sentence of life imprisonment.

In Queensland, rape and sexual assault are punishable under s 349, Chapter 32 of the Criminal Code Act 1899 with a maximum penalty of life imprisonment.

In Tasmania, rape is punishable under s 185 of the Criminal Code Act 1924 with a maximum punishment of 21 years under s389 of the Criminal Code Act 1924.

In the Australian Capital Territory, sexual assault is punishable under Part 3 of the Crimes Act 1900 with a maximum punishment of 17 years.

Sexual assault is considered a gendered crime which results in 85% of sexual assaults never coming to the attention of the criminal justice system according to the Australian Bureau of Statistics. This is due to low reporting rates, treatment of victims and distrust of the criminal justice system, difficulty in obtaining evidence and the belief in sexual assault myths.

However, once a person is charged, the public prosecutor will decide whether the case will proceed to trial based on whether there is sufficient evidence and whether a case is in the public interest. Once the matter has reached trial, the matter will generally be heard in the District Court. This is because sexually violent crimes are mostly categorised as indictable offences (serious offences), as opposed to summary offences (minor offences). Sexual offences can also be heard in the Supreme Court, but more generally if the matter is being heard as an appeal.

Once the matter is being heard, the prosecution must provide evidence which proves "beyond reasonable doubt" that the offence was committed by the defendant. The standard of proof is vital in checking the power of the State. While as previously stated that each jurisdiction (State and Territory) has its own sexual offence legislation, there are many common elements to any criminal offence that advise on how the offence is defined and what must be proven by the prosecution in order to find the defendant guilty. These elements are known as Actus Reus which comprises the physical element (see Ryan v Regina) and the Mens Rea which comprises the mental element (see He Kaw Teh (1985)).

Notable sexual assault cases which have resulted in convictions are Regina v Bilal Skaf and Regina v Mohommed Skaf which were highly visible in New South Wales within the media the 2000s. These cases were closely watched by the media and led to legislative changes such as the passing of the Crimes Amendment (Aggravated Sexual Assault in Company) Act 2001 No 62 which dramatically increased the sentences for 'gang rapists' by creating a new category of crime known as Aggravated Sexual Assault in Company. Changes were also made to the Crimes (Sentencing Procedure) Act 1999. This change is known as the Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2004 No 3 which expands the category of offences in respect of which a Local Court may receive and consider Victim Impact Statements to include some indictable offences which are usually dealt with summarily.