Notes - Topic 4-Sexual Assault PDF

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Topic 4 – Sexual Offences There are two main categories of sexual assault: 

Sexual Assault (Section 61I Crimes Act)

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Aggravated Sexual Assaults (Sections 61J; 61JA; 66A; 66B; 66C; 66D; 66EA; 73; 78A).

s 61P - offences of Attempted Sexual Assault s 61K - Assault with Intent to Have Sexual Intercourse s 80 -80F - offences in respect of sexual servitude s 80G - incitement to commit sexual offence Examples of aggravating factors include: 

The age of the victim;

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The sexual assault being in company;

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The infliction of actual bodily harm on the victim;

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The victim having a serious physical disability; or cognitive impairment;

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The victim’s liberty being deprived;

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The victim being under the authority of the offender.

Sexual assault is a very serious offence. Depending upon whether or not the offence involves aggravation or not, the maximum penalty ranges from 14-20 years. The offence has a common law basis (the offence of rape), but has been significantly modified by statute since 1981, the most recent major amendments involving the introduction of s 61HA of the Act on 1 January 2008. However, in respect of sexual assault and aggravated sexual assault, the major change brought about by the 2018 amendments is that the issue of consent is now set out in s 61HE of the Crimes Act 1900 rather than s 61HA; and s 61HA now contains the definition of “sexual intercourse”.

Elements of Sexual Assault （s 61I） Actus Reus 

Sexual intercourse (defined by s 61HA)

Without consent of the victim (the issue of consent from the perspective of the victim; partially defined in s 61HE, and partially defined by common law) Mens Rea 

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Knowledge that the victim does not consent; or Recklessness as to whether the victim consents; or No reasonable basis for believing that the victim consents (objective test introduced by Section 61HA)

Actus Reus – a) Definition of Sexual Intercourse (s 61HA) s 61HA defines sexual intercourse. The definition is wide, and includes penetration of the sexual organs; penetration of the anus; and oral sex. The definition is gender neutral. Includes the continuation of sexual intercourse (i.e. the sexual intercourse may at first be consensual and if consent is withdrawn and the sexual intercourse continues, a sexual assault may have occurred). The physical act of sexual intercourse (e.g. penetration) must be voluntary and intentional as distinct from accidental (per R v AJS (2005)12 VR 563; [2005] VSCA 288)

Actus Reus – b) Without Consent of the Victim Consent to sexual intercourse must be “freely and voluntarily given” (s 61HE (2)). This replicates the position at common law-made no indication of consent. The failure of the victim to physically resist, or tell the offender to stop, does not mean that consent has been freely and voluntarily given (Wilkes and Briant (1965) VR 475). A trial judge instructing a jury that a wife can consent to sexual intercourse with his wife after “rougher than usual handling” would confuse the jury into believing that consent does not necessarily have to be freely and voluntarily given (Question of Law (No 1 of 1993) (1993) 59 SASR 214). However, the NSW Court of Criminal Appeal in Mueller (2005) pointed out that the trial judge must direct the jury as to what consent being “freely and voluntarily given” means in the context of the evidence of the particular case.

s 61HE(5) sets out things which negate the ‘consent’ of the victim:(person doesn’t consent) (a) The victim does not have the capacity to consent because of age or cognitive incapacity; (b) The victim does not have the opportunity to consent because asleep or unconscious; (c) Threats of force or terror (against the victim, or against a third person); (d) Unlawfully detained. (a) Unable to consent due to age or cognitive ability-i.e. the other person due to being very young; very old; or intellectually impaired cannot understand what is sexual activity and cannot give consent. (b) Person does not have the opportunity to consent due to being unconscious or asleep. (if consent been freely and voluntarily given) Whether or not the person is unconscious or asleep

is a question of fact and, if the person is unconscious or asleep, the belief of the defendant as to whether the person was unconscious or asleep is relevant to the mental elements of the offence, in particular the mental element of recklessness (Dean v R (2006) 166 A Crim R 341; [2006] NSWCCA 31; R v Getachew [2012] HCA 10; (2012) 248 CLR 22) (c) Threats of force or terror can be threats allegedly coming from others directed towards the victim (e.g. R v Clark, unreported ,NSWCCA, 17 April 1998, where the victim was a prisoner who consented to sex with an the defendant because the defendant told him he would protect him from other prisoners who had threatened him). However, threats of force or terror must involve threats to physical safety, rather than nonviolent threats (R v Aitken (2005) 63 NSWLR 719). Non-violent threats are still relevant as to whether or not consent was given “freely and voluntarily”.

s 61HE(6) sets out circumstances where ‘mistake’ vitiates (i.e. negates) consent: (a) Mistaken belief as to the identity of the person; (b) Mistaken belief as to being married; (c) Mistaken belief the sexual intercourse is for medical or hygienic purposes; (d) Any other mistaken belief about the nature of the activity induced by fraudulent means. The provisions in s 61HE(6) alter the common law position regarding ‘mistake’ vitiating consent. At common law, mistake would only vitiate consent if: (1) there was a mistake as to the identity of the person e.g. Gallienne (1963), where the victim consented to sexual intercourse in the dark, believing the person who got into bed with her was her husband. When she realised it was not her husband, she immediately screamed out and pushed the Defendant away (2) the nature of the act e.g. Williams (1923) where the victim was a young girl who did not have any understanding of what sexual intercourse was, and was told by the Defendant who was her music teacher, that it was an exercise to improve her breathing. A mistaken belief that (1) the Defendant was married to the victim (Papadimitriopoulos (1959)) or (2) the penetration of the sexual organs was necessary for a medical examination (Mobilo (1990)) was not sufficient to vitiate consent.

Actus Reus – c) Factors relevant to establishing that consent to sexual intercourse was not freely and voluntarily given s 61HE(8) states that grounds upon which it may be established that consent was not freely and voluntary given include: (a) The victim was substantially intoxicated; (b) Intimidatory or coercive conduct towards the victim that does not involve a threat of force; (c) Abuse of a position of authority or trust. (a) The level of intoxication of the victim may mean that although the victim is conscious, they are unable to freely and voluntarily give consent: R v Chant and Madden (unreported, 12 June 1998, NSW Court of Criminal Appeal). (b) Conduct that is not a threat of force or terror, but may be intimidatory or coercive, is the type of conduct in R v Aitken (2005) 63 NSWLR 719 (although the appeal in that matter succeed because of the directions to the jury regarding threats of force or terror).

Situations where consent was not freely and voluntarily given: Consent must be freely and voluntarily given at the time the sexual activity occurs. The person does not have to actively resist, or struggle or scream. Consent previously given may be withdrawn. It is a question of fact for the jury as to whether or not consent was freely and voluntarily given and the jury should not be left in any doubt that a person cannot use force; threaten; or blackmail the other person into having sex. (Question of Law (No 1 of 1993) (1993) 59 SASR 214; R v Mueller (2005) 62 NSWLR 476; [2005] NSWCCA 47) Clark (1998) where the victim was a male prisoner who consented to sex with the Defendant because the Defendant told the victim he would protect him from a group of prisoners who wanted to harm the victim, but only if the victim would have sex with him (although the appeal succeeded on other grounds); Chant and Madden (1998), where the victim was heavily intoxicated with alcohol and drugs (although the NSW Court of Criminal Appeal pointed out that the trial judge when directing the jury must “…identify the point at which disinhibition gave way to a lack of real consent” per Wood CJ at CL); Dean (2006) where the victim was asleep. However, the NSW Court of Criminal Appeal reiterated that the onus is on the prosecution to prove beyond a reasonable doubt that the victim did not consent because she was asleep. However, a “threat” which was a non-violent threat was held not to result in consent not being freely and voluntarily given in Aiken (2005), where the Defendant told the victim he would not report her for shoplifting if she would masturbate him. However, Section s 61HE(8)(b) now refers to non-violent threats or coercion (Aiken involved the previous

Section 61R). It is a question of fact as to whether the non-violent threat or coercion was sufficient to mean that consent was not freely and voluntarily given.

Mens Rea - s 61HE(3) The position of the common law was that the mens rea of sexual assault is subjective, not objective (DPP v Morgan, where the Defendants argued they honestly believed the victim was consenting, because they were told by the husband of the victim that she enjoyed ‘rough’ sex, and the more she protested, the more she was enjoying the experience. DPP v Morgan was applied in NSW in McEwan (1979)).

Mens Rea – (a) The Defendant knew the victim did not consent (subjective test) A person attempting to commit one of a number of specific substantive offences liable to the same penalty as that provided for the substantiative offences. WO v DPP (NSW) [2009] NSWCCA 275 Mens Rea – (b) The Defendant was reckless as to whether the victim consented (subjective test) There are two types of recklessness in sexual assault: 

Advertant recklessness, where the Defendant realises that there is a real possibility the victim does not consent, but continues anyway;

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Non-advertant recklessness, where the Defendant does not consider at all whether or not the victim is consenting

The mental element of recklessness (both advertent and non-advertent) is considered in R v Tolmie (1995) 37 NSWLR 660; R v Banditt (2004) 151 A Crim R 215; [2004] NSWCCA 208; and Banditt v R [2005] HCA 80; (2005) 224 CLR 262. The concept of advertant and non-advertant recklessness was discussed in detail by Kirby J in Tolmie (1995). The approach of Kirby J in Tolmie was followed by the NSW Court of Criminal Appeal in Mueller (2005). In Banditt (2005) the High Court rejected the argument that the only type of recklessness was advertant recklessness, and held that the concept of recklessness can be expressed by the trial judge to the jury using various formulations, such as “indifference as to whether or not there is consent”; “determination to have intercourse with the person whether or not that person is consenting”, and “awareness of the possibility of the absence of consent and proceeding anyway”. Recklessness in circumstances where the victim gave evidence that she was asleep when the sexual intercourse commenced has been considered by the High Court in R v Getachew (2012) HCA 10 (28 March 2012). Getachew involved Sections 36, 37AA and 38 of the Crimes Act 1958 (Vic).

In respect of the element of recklessness, where sexual intercourse occurred while being aware that the person is not consenting or might not be consenting; or while not giving any thought to whether the person is consenting or might not be consenting” the mental element of recklessness was established.

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The legislation also contained a provision that a person could not consent while unconscious.

Mens Rea – (c) The Defendant had no reasonable grounds for believing the victim consented (objective test) Sexual Assault and The Issue of Intoxication The fact that a person is intoxicated does not necessarily mean that they did not, or could not, consent. Where consent to sexual intercourse is concerned, for the purpose of the law consent means the ‘victim’ knows what he or she is agreeing to, even if the person may not have consented when sober. R v Chant and Madden (unreported, 12 June 1998, NSW Court of Criminal Appeal). The intoxication of the victim can be taken into account in respect of whether or not consent was freely and voluntarily given - s 61HE(4)(b). The self-induced intoxication of the Defendant cannot be taken into account in respect of whether or not the Defendant has the mens rea for sexual assault - s 61HE(3). WO v DPP (NSW) [2009] NSWCCA 275

Aggravated Sexual Assault Aggravated sexual assault (which carries a maximum 20 year sentence compared to a maximum of 14 years for sexual assault) is set out in s 61J and 61JA of the Crimes Act 1900 (separate to the specific offences involving child sexual assault) and include      

circumstances of aggravation involving the age of the victim; whether the victim was under the authority of the defendant; whether the victim had a disability or cognitive impairment; whether the sexual assault occurred in circumstances of breaking or entering into a house; whether the defendant was in company of others; and whether the victim suffered actual bodily harm or grievous bodily harm in addition to the sexual assault (or whether there were threats to inflict harm).

New legislation to strengthen child sexual abuse laws

The NSW Government has introduced reforms to strengthen child sexual abuse laws via the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 introduced into the NSW Parliament in June 2018. The Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 •

Modernised terminology by transforming the offence of ‘indecent assault’ into sexual touching and the offence of ‘act of indecency’ into sexual act.

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Introduced new offences of failing to report child abuse to police, failing to protect a child from abuse, grooming a parent or carer to access a child, grooming children and sexual touching of a child aged 16 or 17 who is under special care.

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Introduced a new limited similar age defence and new limited ‘sexting’ defence and exception ; AND

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Retrospective repeal of an old limitation period under s 78 that is preventing some victims from obtaining justice

Indecent assault now covered by sexual touching •

The provisions relating to consent have been moved from s 61HA to s 61HE. The content of the provisions remains the same, except that in addition to sexual intercourse they will now also apply to sexual touching and sexual act offences.

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sexual touching (where there has been physical contact) and

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sexual act (where there is no physical contact).E.g forcing or inciting a victim to touch themselves = sexual act offences (there is no physical contact between the victim and another person).

‘sexual touching’ and ‘sexual acts’ The definition of both ‘sexual touching’ (s 61HB) and ‘sexual act’ (s 61HC) include a reasonable person test. Touching or an act will be sexual in circumstances where a reasonable person would consider the touching or act to be sexual. There is an exception to these offences when the conduct is for genuine medical or hygienic purposes to ensure these situations are not covered. The new sexual touching offences relating to children will be divided into two age categories. •

Sexual touching of a child under 10 (s 66DA) will carry a maximum penalty of 16 years imprisonment and a standard non-parole period of 8 years.

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Sexual touching of a child between 10 and 16 will carry a maximum penalty of 10 years imprisonment.

Grooming

The offence of grooming a child in s 66EB(3) covers any adult who offers a child a material or financial benefit with the intention of making it easier to access the child for unlawful sexual activity. This captures behaviour like giving a child gifts or money, which can be used to gain a child’s trust. The maximum penalty 12 years imprisonment if the child is under 14 years of age, and 10 years imprisonment if the child is 14 or 15 years old. A new offence of grooming an adult (in s 66EC) cover situations where a person provides gifts or money to an adult with the intention of making it easier to access a child in their care for unlawful sexual activity. The offence is up to six years imprisonment where the child is under 14 years of age, and five years imprisonment where the child is 14 or 15 years old.

Failing to reduce or remove a risk of a child becoming a victim of abuse: S43 •

s 43B of the Act, there will be a new offence of failing to reduce or remove a risk of a child becoming a victim of abuse.

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An adult working in an organisation doing child-related work will commit an offence if they know another adult working there poses a serious risk of abusing a child (under 18 years), and they have the power to reduce or remove the risk, and they negligently fail to do so.

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Child-related work is defined in the Child Protection (Working with Children) Act 2012.

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An organisation doing child related work includes, but is not limited to:

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sporting clubs

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child care services

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education services

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residential care services

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Note: an adult worker includes employees, contractors and volunteers.

Failure to report offence •

All adults in NSW will be required to report information to police if they know, believe or reasonably ought to know that a child (under 18 years) has been abused.

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Failing to report information to police without a reasonable excuse will be an offence punishable by up to two years imprisonment. The penalty will be five years if the person has accepted a benefit in exchange for failing to report. The offence will cover failing to report serious physical abuse as well as sexual abuse.

Reasonable Excuse defence

A person will not be guilty of the offence if he or she has a reasonable excuse for not reporting the information to police*. Some examples of what constitutes a reasonable excuse include •

if the offence has already been reported under mandatory reporting obligations, such as to the Child Protection Helpline or to the Ombudsman under the Reportable Conduct Scheme, or the person believes on reasonable grounds that another person has reported it

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if the person believes on reasonable grounds that the information is already known to Police

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if the victim is now an adult and doesn’t want the offence reported

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if the person fears for their safety or another person’s safety if they report

The offence will apply to information about past offences but only where the knowledge or belief is formed after the commencement of this new offence. The offence will apply to failing to report child abuse in place of the existing offence in s 316 (of concealing a serious indictable offence). *The issue of whether the offence will apply when a person received their information from a religious confession is covered by uniform evidence law that applies in multiple Australian jurisdictions. Accordingly, a national approach is desirable. The NSW Government has referred the issue to the Council of Attorneys Ge...