Study Notes Sexual Offence PDF

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Sexual Offences – NSW In NSW, "Sexual Assault" carries a maximum penalty of 14 years imprisonment. "Aggravated Sexual Assault" has a maximum penalty of 20 years whilst "Aggravated Sexual Assault in Company" has a maximum penalty of life imprisonment. CRIMES ACT 1900 - 61I Sexual assault o

Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

In other words, this means: o Sexual intercourse o Without the other person's consent o Knowing the other person does not consent Consent in relation to sexual assault offences is defined in the Crimes Act 1900 (s 61HA) o

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The Crimes Amendment (Consent – Sexual Assault Offences) Act 2007 amended the Crimes Act 1900 (the Act) to create a new section 61HA, introducing a statutory definition of consent for the purposes of sexual assault offences. The law explains the first person knows that second person is not consenting even if the first person is just reckless as to whether the second person is consenting. This includes circumstances where a person does not know if the second person is consenting, realises they might not be consenting, but goes ahead anyway ‘freely and voluntarily’

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The statutory definition in section 61HA uses the updated phrase ‘freely and voluntarily’ in relation to a person’s consent to sexual intercourse. It reflects the common law definition to the extent that it retains recklessness as a subjective fault element -fault element, which states that a person knows another person does not consent to sexual intercourse if the person has no reasonable grounds for believing that the other person consents Section 61HA Also expands the common law definition in terms of the circumstances where consent may be invalid. A person does not consent to sexual intercourse if: o the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity o

the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep

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the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person)

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the person consents to the sexual intercourse because the person is unlawfully detained

Additionally, the section sets out three situations where a person who consents to sexual intercourse has not consented if they were under a mistaken belief: o as to the identity of the other person o

that the other person is married to the person

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that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means

Case law W O v DPP (NSW) [2009] NSWCCA 275 The CCA held that the statutory definition of consent did not apply to an offence of attempting to commit an offence of sexual assault: it only applies to the substantive offences referred to in section 61HA(1). BP v R [2010] NSWCCA 159 The CCA held that the trier of fact must not have regard to any self-induced intoxication of the accused person for the purpose of determining whether that person had knowledge of the complainant’s lack of consent, in accordance with section 61HA(3)(e). However, the intoxication of an offender may be relevant on sentence, depending upon the circumstances of the case and the impact of intoxication upon the offender’s degree of deliberation, and whether it contributes to an offender acting out of character.15 AM v R [2011] NSWCCA 237 The CCA affirmed that the prosecution is entitled to rely on recklessness when establishing the accused had knowledge that the victim did not consent. R v XHR [2012] NSWCCA 247 This case was an appeal by the DPP against a directed verdict of acquittal. The CCA held that the three grounds of appeal that related to consent were made out, namely that: The Crown does not have to show the complainant communicated his or her lack of consent in order to prove that the accused knew that the complainant did not consent. The trial judge failed to have regard to section 61HA(3)(d) in directing a verdict of acquittal. That is, the judge erred in failing to consider what steps the accused took to ascertain whether the complainant consented to sexual intercourse. Sections 61HA(4)(c) (consent gained by threats or terror) and 61HA(6)(b) (consent gained by intimidatory or coercive conduct, or other threat, that does not involve a threat of force) are only relevant where there is apparent consent to sexual intercourse, but the consent is negated because it was induced by force or intimidatory conduct. Dean v Phung[2012] NSWCCA 223 The CCA affirmed that a mistaken belief that the accused is married to the victim negates consent to sexual intercourse. To convict you of Sexual Assault The prosecution must prove each of the following matters beyond a reasonable doubt:  You had sexual intercourse with another person  That person did not consent  You knew that person did not consent  

Physical element 1. D had sexual intercourse (defined in s 61H) 2. Without V’s consent Fault element 3. D ‘knows’ that V did not consent – this also includes recklessness or where D has ‘no reasonable grounds’ to believe that V consented (see s 61HA(3))

Aggravated Assault: (SS 61J and 61JA) In some instances, the charge of sexual assault is one, which may be ‘aggravated’ (s61J). Potential circumstances in which such aggravation may occur include: 1. Infliction of an injury on the alleged victim (s61Ja), or 2. Threat of an injury by the accused by use of a weapon or instrument (s61Jb), or 3. The accused acts along with another person (s61Jc), or 4. An alleged victim aged under 16 (s61Jd), or 5. Where the alleged victim is “under the authority” of the alleged offender (s61Je), or 6. The alleged victim having a serious physical disability (s61Jf), or 7. The alleged victim having a cognitive impairment (s61Jg), or 8. The alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence (s61Jh), or o 9. The alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence (s61Ji). Indecent Assault (61L) o o o o o o o o

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Carries a maximum penalty of 5 years imprisonment and is defined as, ‘Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person’. Indecent assault may result from a slight touch to an unwanted kiss

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Occurs in circumstances of aggravation. Penalties are 7 years on a normal occurrence and 14 years if the victim is under the age of 16

Sexual Assault Qld - CRIMINAL CODE 1899 - SECT 352 352 Sexual assaults Any person who (a) Unlawfully and indecently assaults another person; or (b) Procures another person, without the person's consent (i) to commit an act of gross indecency; or (ii) to witness an act of gross indecency by the person or any other person; is guilty of a crime. Queensland  The act or physical element of the offence of rape is the penetration. As can be seen from the definition of sexual penetration in s 6 and s 349(2) of the Criminal Code (Qld), penetration has a broad meaning. The essence of the offence of rape is lack of consent. However, the legislation is silent on a mental element, such as whether the person was reckless as to whether the other person was consenting. This then leaves the circumstances under which the penetration occurred, in order to establish lack of consent. 348 Meaning of consent (1) In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. (2) Without limiting subsection (1), a person's consent to an act is not freely and voluntarily given if it is obtained— (a) by force; or (b) by threat or intimidation; or

(c) by fear of bodily harm; or (d) by exercise of authority; or (e) by false and fraudulent representations about the nature or purpose of the act; or (f) by a mistaken belief induced by the accused person that the accused person was the person's sexual partner. Elements of Sexual Assault: -

The mental element is a mixture of subjective and objective factors. The assault requires the fault element of intention, whether the assault is constituted by the direct application of force or a bodily act/gesture threatening or attempting to apply force.

prescribed sexual offence means any of the following

offences— (a) rape; (b) attempt to commit rape; (c) assault with intent to commit rape; (d) an offence defined in the Criminal Code, section 352. What the police must prove In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt. 1. The accused had sexual intercourse with a person. 2. The other person did not consent to the sexual intercourse. 3. The accused knew the other person did not consent to the sexual intercourse. 4. The sexual intercourse was in circumstances of aggravation. It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence.

Aggravated Sexual Assault -

In Queensland, the offence of Aggravated Sexual Assault is more serious than Sexual Assault Simpliciter and carries a maximum penalty of between 14 years and life imprisonment.

WHAT ACTIONS MIGHT CONSTITUTE AGGRAVATED SEXUAL ASSAULT? -

Forcing a person to perform oral sex against their will, or performing oral sex on a person without their consent would likely amount to Aggravated Sexual Assault (though the former circumstance can also constitute the offence of rape). Aggravated Sexual Assault of this kind is likely to carry a maximum penalty of 14 years imprisonment. o

Forcing a person to perform a penetrative sexual act on you, or another person, using an implement (anything that is not a penis) might well constitute an offence of Aggravated Sexual Assault punishable by life imprisonment. 

Performing any offence of Sexual Assault (even an ostensibly non-aggravated form) while armed with a weapon or in the company of a co-offender will also likely constitute an Aggravated Sexual Assault and be punishable by life imprisonment.

To convict Sexual Assault:

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the prosecution must prove each of the following matters beyond a reasonable doubt: You indecently assaulted another person, and You did so unlawfully, or You procured another person to commit, or witness, an act of gross indecency, and The person did not consent to being procured, committing or witnessing the act of gross indecency.

Indecent assault - It should be noted that the physical act itself may not be indecent, such as putting an arm around the person’s shoulder, but if accompanied by a suggestion that the person might like to engage in sexual activity, then in combination the act and the words constitute an indecent assault: CASE: R v Leeson (1968) 52 Cr App Rep 185.

s 24 - Mistake of fact, the principal defence to sexual offence - The principal defence to a charge of unlawful intercourse without consent is under s 24 Mistake of fact, where the defendant admits intercourse took place but contends that he believed the complainant was consenting. - Objective test of what the reasonable person would have thought under the circumstances of the act of sexual intercourse, or a more subjective test of whether there were reasonable grounds for the defendant’s mistaken belief? A subjective approach to the question of reasonable but mistaken belief was taken in CASE: R v Mrzljak [2004] QCA 420...