What is Unlawful Sexual Intercourse?

When the Prosecution pursues a unlawful sexual intercourse charge, they must demonstrate beyond reasonable doubt that all elements of the offence have been satisfied.

This generally involves establishing the identity of the accused, proving that the accused engaged in sexual intercourse with the alleged victim, and establishing the age of the victim at the time of the offence and or their understanding of the implications of sexual intercourse, depending on the specific charge.

Following a police interview and upon being charged for unlawful sexual intercourse, the accused appears in the Magistrates Court of South Australia, and the case is later committed to the District Court of South Australia for trial or sentencing.

If you are charged with this offence, you should seek legal representation and advice at the earliest opportunity from a specialist criminal defence lawyer. Our experienced criminal lawyers can assist you with the preparation of your defence and represent you at Court hearings in the Magistrates Court, District Court and Supreme Court of South Australia.

If you are guilty of the offence, we can assist you by entering your plea of guilty and making submissions on your behalf to try and get the penalty reduced.

Our experienced criminal defence lawyers have successfully represented many individuals who were charged with unlawful sexual intercourse in South Australia.

Despite the seriousness of these charges, several defences apply (except for consent). For instance, unlawful sexual intercourse charges do not apply to sexual intercourse between married individuals.

Or, for offences under section 49(3) of the Act (sex with someone under the age of 17), the accused may claim they were under 17 at the time of the alleged offence or reasonably believed that the alleged victim was 17 years of age or older.

Additionally, it may also be a defence to unlawful sexual intercourse if there is an honest and reasonable mistake of fact if the accused was above the age of 16 years and at the relevant time the victim was under the age of 17 years or believed on reasonable grounds that the victim was above the age of 17 years.

A suspended sentence of imprisonment is a term of imprisonment that is served in the community under a suspended sentence bond which can last for anywhere up to three (3) years and include various conditions the Court considers to be appropriate.

If certain ‘prescribed circumstances’ are satisfied under Section 96(3)(ba) of the Sentencing Act 2017, an adult offender may be eligible for a suspended term of imprisonment, where:

1. The offender was not only than 20 years of age.
2. The victim’s age and age difference with the offender make suspending a term of imprisonment appropriate.
3. The offender was not an authority figure in relation to the victim during the commission of the offence.

However, if the suspended sentence bond is breached by committing any further criminal acts, or by breaching any term of the suspended sentence bond, then, the individual will be brought before the Court and may be ordered to serve the balance of the remaining period of imprisonment in addition to the imposition of penalties for the offence resulting in a breach of the suspended sentence bond.

Unlawful sexual intercourse charges refer to a ‘position of authority’. This is where the accused has a significant level of power or control over the victim. This can be due to familial relationships such as a parent or step-parent, professional roles such as a doctor or psychologist, or a teacher, or other circumstances that enable the accused to exert authority and control over the victim. This is also referred to as a circumstance of aggravation and makes the overall offending more serious.

Consent to sexual intercourse is not a defence to an unlawful sexual intercourse charge. This is because the law considers certain individuals (such as those under a certain age or with an intellectual disability) incapable of giving informed consent.

In the context of this law, ‘sexual intercourse’ includes penile penetration of the vagina, anus, or mouth, as well as penetration of the vagina or anus by any part of the body of another person or by an object. It also includes oral sex, mutual masturbation, and other forms of sexual contact.