Sexual Offences - notes PDF

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Sexual Offences (Crimes Act 1900) • Sexual assault (s 61I) + aggravated sexual assault (s 61J) + aggravated sexual assault in company (s 61JA) • Sexual touching (s 61KC) [previously indecent assault] + aggravated sexual touching (s 61KD) • Sexual act (s 61KE) [previously acts of indecency] + aggravated sexual act (s 61KF) Two irrebuttable presumptions/immunities overturned: 1. boy under 14 years was incapable of rape; and 2. husband could not be guilty of raping his wife • Removed by: s 80AC (re age); s 61KA (re marriage – note Hct decision in PGA v The Queen (2012))

Sexual Assault (s61I) Any person who has sexual intercourse(AR) with another person without the consent(AR) of the other person and who knows(MR) that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

Ar 1)Sexual intercourse (s61HA) For the purposes of this Division, sexual intercourse means: (a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or (c) cunnilingus (stimulation of female genitals using tongue or lips), or ( d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c) 2)without consent (s61HE(2)) (2) Meaning of “consent” A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity. (11) In this section: sexual activity means sexual intercourse, sexual touching or a sexual act.

Note: s 61HE(9) A person who does not offer actual physical resistance to a sexual activity is not, by resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity. Matters that automatically negate consent (clear beyond doubt) consent: s 61HE(5) • person does not have the capacity to consent either because of age or cognitive capacity: s61HE(5) (a); • person is unconscious or asleep: s 61HE(5)(b) • person consents because of threats of force or terror: s 61HE(5)(c); • person is unlawfully detained: s 61HE(5)(d); reason only of that fact, to be regarded as consenting to the sexual activity ‘Mistakes’ that automatically negate consent: s 61HE(6) • person under mistaken belief as to the identity of other person: s 61HE(6)(a) • mistaken belief that married to the person: s 61HE(6)(b) • person under mistaken belief that the sexual activity is for health or hygienic purposes: s 61HE(6)(c) • under any other mistaken belief about the nature of the act induced by fraudulent means: s 61HE(6)(d) r/ship between s 61HE(7) and MR: ‘For the purposes of subsection (3), the other person knows that the person does not consent to the sexual activity if the other person knows the person consents to the sexual activity under such a mistaken belief’ (see Gillard [2014] HCA 16) Matters that may negate consent include: s 61HE(8) • If person has sexual intercourse while substantially intoxicated by alcohol or any drug: s 61HE(8)(a); • If person has sexual intercourse because of intimidatory or coercive conduct or other threat not involving threat of force: s 61HE(8)(b); and • abuse of position of authority or trust: NSW (may negate): s 61HE(8)(c).

MR Sexual Assault (s61I) Any person who has sexual intercourse(AR) with another person without the consent(AR) of the other person and who knows(MR) that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years. 1. Intent to have sexual intercourse [technically correct but not in issue] 2. ‘Knowledge’ of non-consent: s 61HE(3) & (4) CL position look in other book

Knowledge about consent: s 61HE(3), (4)

(3) A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if: (a) the person knows that the alleged victim does not consent to the sexual activity, or (b) the person is reckless as to whether the alleged victim consents to the sexual activity, or (c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity. (4) For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (a) including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but (b) not including any self-induced intoxication of the person.

Element 2 MR: s 61HE(3) & (4)‘knowledge’ Deeming provision: – Actual knowledge (you knew that other person was not consenting) (s 61HE(3)(a)) – Recklessness (s 61HE(3)(b)) = • Advertent recklessness the accused was aware of the possibility that the victim was not consenting, but went ahead regardless (purely subjective); and • Inadvertent recklessness (incorporates objective aspect) o requires that the relevant risk would have been obvious to someone with D’s mental capacity: Tolmie (1995) 37 NSWLR 660

o Inadvertent recklessness does not require a belief or awareness on the part of D ; and – The person has no reasonable grounds for believing that the other person consents (s61HE(3)(c)) S 61HE(3)(c) & (4) no reasonable grounds for believing… (3c) the person has no reasonable grounds for believing that the alleged victim consent consents to the sexual activity. (4) For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (a) including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but

(b) not including any self-induced intoxication of the person....