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Z5078306 – Simran Dhaliwal

UNSW Law

Electronic Assignment Cover Sheet Student Declaration of Academic Integrity https://student.unsw.edu.au/plagiarism I declare that this assessment item is my own work, except where acknowledged, and has not been submitted for academic credit elsewhere, and acknowledge that the assessor of this item may, for the purpose of assessing this item: • Reproduce this assessment item and provide a copy to another member of the University; and/or, • Communicate a copy of this assessment item to a plagiarism checking service (which may then retain a copy of the assessment item on its database for the purpose of future plagiarism checking).

Student name:

Simran Dhaliwal

Student ID:

z5078306

Course no:

LAWS1022

Course name:

Criminal Laws

Lecturer name:

Prof. McNamara

Class Days/times:

Mon/Thurs 2-4pm

Due date:

Fri, 8th Sept 2017

No of words:

Topic:

Part A: 663 Part B: 1821 Total: 2484 LAWS1022 Mid Sem Part A: Problem Question Part B: Research Essay

I certify that I have read and understood the University rules in respect of Student Academic Misconduct. By the act of submitting this assignment to turnitin you are agreeing to the above Student Declaration of Academic Integrity.

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Z5078306 – Simran Dhaliwal

Part A I UNDER S 61I CRIMES ACT 1900 (NSW), IS AMELIO LIKELY TO HAVE COMMITTED SEXUAL ASSAULT? The Crown must prove beyond reasonable doubt that Amelio intentionally and voluntarily (MR1) had sexual intercourse with Brigitte (AR1) without her consent (AR2), knowing that she did not consent (MR2) (s 61I; R v Luke Andrew Lazarus (2017) NSWDC). The court is likely to find two acts of voluntary and intentional ‘sexual intercourse’ occasioned by two distinct acts of penetration of Brigitte’s genitalia (s 61H(1)(a)). Whilst it is possible to view the acts as one continuous series of sexual activity given the relatively short period of time implied by ‘one swift motion’, this is an unlikely construction of s 61H(1)(d), as the two acts were not occasioned by the same act of penetration (s 61H(1)(a)). The first act is non-contentious as Brigitte ‘was happy to have sex with [Amelio]’, implying ‘free and voluntary’ consent prior to the condom removal (s 61HA(2), (4)-(8)). In relation to the latter act of unprotected sexual intercourse, the legal position is unclear. It is likely that the court would interpret the phrase ‘…consents to sexual intercourse’ as sufficient without consideration of Brigitte’s consent being conditional on use of the condom through to ejaculation. The relevant moment of non-consent would be the point at which Amelio ejaculated, only after which Brigitte realised that the condom had been discarded. Up to this point, Brigitte, in her own mind (Lazarus), consented to the sexual intercourse, thus the actus reus is unlikely to be established. Had Amelio occasioned a third act of penetration after she pushed him away and expressed non-consent, he would likely be considered so bent on sexual gratification, supported by his statement that he didn’t think it was a ‘big deal’, that he failed to consider Brigitte’s possible non-consent in light of her behaviour (Tolmie (1995) 37 NSWLR 660). In this case, s 61HA(5)(c) would be irrelevant as even if Amelio’s decision not to use a condom was deliberately against Brigitte’s express wishes, it would not amount to deception as to the ‘nature’ of the specifically relevant act of ‘sexual intercourse’. The same would apply to s 61HA(6)(a) as there is no evidence of ‘substantial intoxication’, and s 61HA(6)(c) as positions of authority and trust would likely be interpreted as for example, teacher-student relationships. It remains unclear whether Brigitte’s conditional consent could be negated under s 61HA(8), however the court is likely to be reluctant to engage in judicial activism regarding open interpretations of ss 8. Thus Amelio would likely be acquitted.

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Z5078306 – Simran Dhaliwal Though unlikely, if the court chooses to add weight to Brigitte’s ‘[intent] to convey consent… in her own mind’ (Lazarus), it would find that the actus reus of non-consent is established (s 61HA(2)). After ejaculation, Brigitte pushed Amelio, made him aware that the condom removal ‘was never part of the deal’, complained to the police and stated that she ‘felt like [she] was raped’. Amelio’s assertion that she ‘never told [him] to stop’ would not by reason only of that fact be regarded as consenting to the sexual intercourse (s 61HA(7)). In this case, the element of mens rea would be established through any one of the three states of knowledge of consent under s 61H(3), namely (a) actual knowledge, (b) recklessness and (c) a belief held on reasonable grounds. Prior to engaging in sexual intercourse, Brigitte halted intimacy and made Amelio aware of her preference to engage in safe sex, her subsequent actions indicating that ‘before [going] any further’, she required him to wear a condom. Thus, the relevant test is that of inadvertent recklessness under s 61H(3)(b) however the Crown would likely prosecute under the hybrid, easier to satisfy test under s 61H(3)(c). Amelio initially agreed to wear the condom but at the point of removal, held a genuine belief that Brigitte consented evident through his statements ‘she definitely agreed to sex, and never told me to stop’. Brigitte did not physically or verbally convey non-consent during the relevant act. Thus, if weight is given to Lazarus, this amounts to ‘reasonable grounds’ for Amelio to have formed a genuine subjective belief that Brigitte was consenting. Thus, Amelio is unlikely to be convicted of sexual assault beyond reasonable doubt.

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Z5078306 – Simran Dhaliwal

Part B THE APPROPRIATENESS AND EFFECTIVENESS OF S 61HA(3)(c) CRIMES ACT 1900 (NSW),1 FOR LIABILITY IN SEXUAL ASSAULT

I INTRODUCTION The 2007 reforms to the NSW sexual assault laws responded to mass debate on controversial sexual assault cases and the changing social attitudes of notions of consent.2 The inclusion of the hybrid ‘objective-subjective’ test in s 61HA(3)(c),3 was a reactive step against the pre2007 undesirable effects of the ‘Morgan defence’,4 which enabled defendants with honest, yet unreasonable or distorted beliefs that the complainant was consenting to be acquitted. The provision now adds an objective standard into the mental element, which extends the scope of liability beyond actual knowledge and recklessness, if a belief of consent is not held on reasonable grounds. Further, the reform was anticipated to increase both reporting and conviction rates by shaping community values regarding acceptable standards of sexual behaviour, based on a communicative, rather than restrictive model of consent.5 This paper discusses the appropriateness and effectiveness of s 61HA(3)(c) as a basis for liability in sexual assault cases. Part I discusses its appropriateness; whether the provision is suitable and within the scope of the fundamental notions of criminal responsibility. Part II assesses its effectiveness; whether the provision successfully achieves its intent. Ultimately, this paper concludes that whilst s 61HA(3)(c) is an appropriate basis for liability in sexual assault, its effectiveness is partial at best.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 Crimes Act 1900 (NSW) s 61HA(3)(c). 2 Richard Sawyer and Tom Tian, ‘Negligent Sexual Assault: Reform of the Criminal Law and a Tort Alternative’ (2009) 4 Public Space: The Journal of Law and Social Justice 113. 3 Crimes Act 1900 (NSW) s 61HA(3)(c). 4 DPP v Morgan [1976] AC 182. 5 New South Wales, Parliamentary Debates, Legislative Council, 7 November 2007, 3584-3587 (John Hatzistergos, Attorney-General).

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Z5078306 – Simran Dhaliwal

II APPROPRIATENESS A The place of objectivity in mens rea “…the essence of an offence is the wrongful intent, without which it cannot exist.”6 – Bishop (1930) in Chesney (1939) Bishop’s commentary reinforces the notion of the ‘guilty mind’ as the crux of the criminal law, which intertwined with the presumption of innocence serves to protect a defendant until proven guilty beyond reasonable doubt.7 However, this purely subjective requirement previously failed to account for the complexity of notions of sexual assault such as consent, which can rarely be inferred from a simple ‘yes’ or ‘no’.8 This called for a nuanced approach to the mens rea requirement for sexual assault offences beyond actual knowledge and recklessness; an objective that is manifested in s 61HA(3)(c).9 However, concerns have surfaced regarding the appropriateness objectivity in assessing mens rea.10 B A one-step interpretation of s 61HA(3)(c) The first possible construction of the provision is a one-step test: Is the jury convinced beyond reasonable doubt that in consideration all the circumstances of the case, the defendant had no reasonable for a belief that the complainant was consenting? This interpretation is a clear departure from the traditional subjective test of mens rea, as it fails to inquire into the mind of the defendant and instead bases liability on whether there were ‘reasonable circumstances’ to infer consent. Effectively, the defendant’s honest beliefs would be ignored and would be judged against the standard of a ‘reasonable person’. Further issues arise regarding the notion of ‘negligence’ that is conveyed by this ‘reasonable person’ standard.11

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 6 Eugene Chesney, ‘Concept of Mens Rea in the Criminal Law’ (1939) 29(5) Journal of Criminal Law and Criminology 627. 7 Ibid. 8 James Monaghan and Gail Mason, ‘Reasonable reform: Understanding the knowledge of consent provision in section 61HA(3)(c) of the Crimes Act 1900 (NSW)’ (2016) 40 The Criminal Law Journal 246. 9 Crimes Act 1900 (NSW) s 61HA(3)(c). 10 Ian Dobinson and Lesley Townsley, ‘Sexual assault law reform in New South Wales: Issues of consent and objective fault’ (2008) 32 The Criminal Law Journal 152. 11 Richard Sawyer and Tom Tian, ‘Negligent Sexual Assault: Reform of the Criminal Law and a Tort Alternative’ (2009) 4 Public Space: The Journal of Law and Social Justice 113.

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Z5078306 – Simran Dhaliwal C A two-step interpretation of s 61HA(3)(c) However, these views fail to construe s 61HA(3)(c) appropriately and are answerable in light of the preferred interpretation conveyed by its text,12 contextual intent and relevant case law. This construction is a hybrid two-step test: Is the jury convinced beyond reasonable doubt that in all the circumstances of the case, the defendant held a belief that the complainant was consenting? If yes, was this belief based on reasonable grounds? Whilst the first question inquires into the defendant’s actual state of mind, the second merely adds an objective standard to evaluate whether the accused had reasonable grounds for this particular belief. To construe this as a ‘reasonable person’ test would be inaccurate particularly in light of the subjective reinforcement in s 61HA(3)(d),13 which, in determining criminal liability, focuses on the defendant’s ascertainment of consent in all the circumstances of the case. Secondly, the contextual intent of the provision indicates no intent to depart from general principles of criminal responsibility but rather to extend liability in overturning the ‘Morgan defence’.14 Finally, hybrid tests have been considered appropriate in extending the scope of the mens rea element in laws imposing liability regarding other complex issues such as provocation,15 and self-defence laws.16 Specific to sexual assault, in both AM v The Queen,17 and O’Sullivan v The Queen,18 the jury was directed to interpret s 61HA(3)(c) as a hybrid, two-step inquiry into the honest belief in the defendant’s subjective mind. This was not only reinforced in Lazarus but particular emphasis was placed on the onus remaining on the Crown to prove that the defendant had no reasonable grounds for a belief of consent.19 Thus, the common law has emphasised that hybrid tests such as s 61HA(3)(c) remain within the bounds of the basic principles of criminal responsibility. D Implications on the existing laws of recklessness Unlike the first interpretation, failure to hold a belief that the complainant consented to sexual intercourse is now insufficient in establishing liability without inquiring into whether there !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 12 Crimes Act 1900 (NSW) s 61HA(3)(c). 13 Ibid s 61HA(3)(d). 14 New South Wales, Parliamentary Debates, Legislative Council, 7 November 2007, 3584-3587 (John Hatzistergos, Attorney-General). 15 Stingel v The Queen (1990) 97 ALR 1. 16 Zecevic v DPP (1987) 162 CLR 645. 17 AM v The Queen [2011] NSWCCA 237. 18 O’Sullivan v The Queen (2012) 223 A Crime R 449. 19 R v Luke Andrew Lazarus (Unreported, District Court of New South Wales Criminal Jurisdiction, Tupman J, 4 May 2017).

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Z5078306 – Simran Dhaliwal were reasonable grounds to form the belief. This preserves the law of inadvertent recklessness, which would previously be covered under s 61HA(3)(b),20 and would otherwise be deemed redundant under a one-step interpretation. An easier test to satisfy in s 61H(3)(c) is now available to the prosecution with the addition of an objective component,21 the effect of which is seen in Lazarus in which the prosecution opted to rely on (3)(c) rather than (3)(b).22 E Assessment of appropriateness Ultimately, the preferred textual, contextual and relevant case law relevant to s 61HA(3)(c) indicate that a two-step interpretation of the hybrid is preferred. The principle of mens rea in criminal responsibility is not violated and the ‘Morgan defence’ is undermined without inappropriately altering recklessness laws. Thus, the provision is an appropriate basis for liability in sexual assault.

III EFFECTIVENESS A Reform objectives The inclusion of s 61HA(3)(c) intended to improve reporting and conviction rates of sexual assault through two aims.23 Thus, the effectiveness of the provision will be assessed in light of the following objectives: 1. Overturning the ‘Morgan defence’ to widen the scope of liability to defendants that claimed to hold an honest but unreasonable belief that the complainant was consenting. 2. Shaping community values regarding acceptable standards of sexual behaviour to move away from a resistance-based model to promote a communicative model of consent.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 20 Crimes Act 1900 (NSW) s 61HA(3)(b). 21 Ibid s 61HA(3)(c). 22 R v Luke Andrew Lazarus (Unreported, District Court of New South Wales Criminal Jurisdiction, Tupman J, 4 May 2017). 23 New South Wales, Parliamentary Debates, Legislative Council, 7 November 2007, 3584-3587 (John Hatzistergos, Attorney-General).

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Z5078306 – Simran Dhaliwal B Overturning the ‘Morgan defence’ Critics suggest that s 61HA(3)(c) has inappropriately broadened the scope of liability as it now captures cases in which the defendant had no belief of consent.24 The objective element interacts with the defendant’s mistaken belief in a way that focuses on the reasonable steps taken by the defendant to ascertain consent rather than on mens rea without comparison of the offenders’ degrees of culpability. However these views improperly read s 61HA(3)(c) as a one-step objective test. The preferred reading of the provision as a two-step hybrid test reveals that it is effective in capturing differing degrees of recklessness. In capturing inadvertent recklessness where the defendant failed to consider the possibility of non-consent, it is now redundant to assess culpability on the reasonable steps the defendant took to ascertain consent. For instance, if the actus reus had been satisfied, Amelio could have previously relied on the ‘Morgan defence’ by contending that he did not turn his mind to the possibility of non-consent because regardless of reasonableness, he held a genuine belief that Brigitte consented. However, under s 61HA(3)(c),25 the court could now find that in considering the steps he took to ascertain consent, upon which he formed his belief, this belief was not based on reasonable grounds. The effect of this is that the Crown would only have to prove that Amelio had no reasonable grounds for holding a belief that Brigitte consented, without having to first provide evidence of inadvertent recklessness. Thus, the objective of the provision sends a clear message: defendants must now take appropriate steps to gain consent as it is now unacceptable to not have turned their mind to the possibility of non-consent. It could be contended that this effectively shifts the onus of proof onto the defendant however as per Lazarus,26 no such shift is practically evident. C Promoting acceptable standards of sexual behaviour The effect of s 61HA(3)(d),27 on the ‘reasonable grounds’ component of s 61HA(3)(c),28 is that despite being elements of the inquiry into the mens rea of the defendant, they inadvertently put the complainant on trial to uncover some grounds for a reasonable belief of consent. Rather than challenging society’s unacceptable attitudes towards women, sex and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 24 James Monaghan and Gail Mason, ‘Reasonable reform: Understanding the knowledge of consent provision in section 61HA(3)(c) of the Crimes Act 1900 (NSW)’ (2016) 40 The Criminal Law Journal 246. 25 Crimes Act 1900 (NSW) s 61HA(3)(c). 26 R v Luke Andrew Lazarus (Unreported, District Court of New South Wales Criminal Jurisdiction, Tupman J, 4 May 2017). 27 Crimes Act 1900 (NSW) s 61HA(3)(d). 28 Ibid s 61HA(3)(c).

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Z5078306 – Simran Dhaliwal sexual assault,29 this invites a trier of fact to form an assessment of liability based on their stereotypical perceptions of acceptable and ‘reasonable’ sexual behaviour. The full effect of this is seen in Lazarus in which Judge Tupman thoroughly scrutinises the complainant’s actions: ‘She went outside with him willingly, albeit not knowing…where she was going’, ‘…she did not say “stop” or “no”, ‘... she did not pull [her underwear] up’.30 These comments resemble submissions made in the 2017 National Report on Sexual Assault and Sexual Harassment at Australian Universities, such as ‘…they were in an unsafe place’, ‘…why were you not more clear about telling him no’ and ‘[women] should cover up’.31 Of particular interest is the underlying ‘victim-blaming’ tone in Judge Tupman’s assessment of the facts under s 61HA(3)(c).32 Regardless of the law’s clear recognition of the many nuanced ways non-consent can be communicated beyond offering resistance manifested in s 61HA(7),33 Her Honour repeatedly comments on the complainant’s lack of resistance.34 This reflects the concept of ‘token resistance’ in which due to the socially acceptable gender role of women in withholding sex, a woman’s ‘no’ is misconstrued to mean ‘yes’.35 For example, studies show that women on average must say ‘no’ three times before men, in their minds, will develop an honest belief of non-consent.36 Further, consent that is given after apprehension and subsequent persuasion is considered to be ‘free’.37 The effect of this is evident in Lazarus in which Her Honour considered the complainant’s submission to persuasion amongst other ‘reasonable grounds’ for the defendant’s belief that she was consenting.38 This reflects the issue of male entitlement to sex and the normalisation of

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 29 Australian Human Rights Commission, Change the course: National Report on sexual assault and sexual harassment at Australian universities, (2017) 158-163. 30 R v Luke Andrew Lazarus (Unreported, District Court of New South Wales Criminal Jurisdiction, Tupman J, 4 May 2017)....