This topic relates to assaults with intent to commit a sexual offence committed on or after 1 July 2015. Before that date, the equivalent offence only applied to assaults with intent to commit rape. See Assault with Intent to Rape (Pre-1/7/15)
Crimes Act 1958 s 42 creates the offence of assault with intent to commit a sexual offence. The offence has four elements which the prosecution must prove beyond reasonable doubt. These are:
i) The accused intentionally applied force to another person;
ii) The other person did not consent to that application of force;
iii) At the time of applying force, the accused intended that the other person take part in a sexual act;
iv) The accused did not reasonably believe that the other person would consent to taking part in that sexual act.
This is a hybrid offence, which draws on elements of assault and sexual offences.
Section 42 provides that force may be applied directly or indirectly, or to the body, clothing or equipment worn by the other person (Crimes Act 1958 s 42(4)).
Application of force includes application of heat, light, electric current or other forms of energy, or the application of solid, liquid or gaseous matter (Crimes Act 1958 s 42(5)).
A person takes part in a sexual act if the person:
i) is sexually penetrated or sexually touched by another person or by an animal; or
ii) sexually penetrates or sexually touches another person, themselves or an animal (Crimes Act 1958 s 35C).
This offence replaced the offence of assault with intent to rape. Under the previous offence, it was recognised that the offence prohibited conduct that was more remote than a charge of attempted rape (see R v Worland  VR 607).
It was also established in relation to the previous offence that the criminality came from the assault and the intent to commit rape and it did not matter if the intended rape was factually impossible (R v Cogley  VR 799, 807).