Sexual Assault

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This article deals with the offences sexual and indecent assault. The substantive law for sexual and indecent assault offences is fairly complex, so a succinct outline of the requirements for the different offences is provided in Sexual and Indecent Assault (Outline).

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 692-723.

Introduction

[1] Sexual assault provokes much debate, including various feminist perspectives.

  • Appropriate terminology is contentious, leading to the common law term “rape” being placed in many jurisdictions, including NSW.
    • The adoption of the term “sexual assault” attempted to emphasise that rape is a crime of violence against women and to diminish the importance of consent and the sexual element.
    • Some commentators are suspicious of the ‘de-sexualisation’ of rape.
  • The Model Criminal Code Committee recommended the use of the term “unlawful sexual penetration”.[2]
  • In Fraser,[3] Wooten J said that the frequency of rape signifies social disintegration, not community acceptance of the crime. He noted the origins of prejudice against women in terms of repressive attitudes and prizing virginity. The “recognition of a woman’s right to sexual freedom and sexual equality...” has lead to an appreciation of the “terrible psychological wound” involved in rape.

Patterns, Contexts and Definitions

[4] R Hogg and D Brown, Rethinking Law and Order:[5]

  • Due to notorious under-reporting, official data may provide a misleading picture of the nature and circumstances of sexual violence. According to the 1983 and 1993 National Victim Surveys, only about 1 in 4 incidents are reported.
  • A high number of sexual crimes involve persons known to each other, as many as 2 in 3 cases, which is a cause of the non-reporting.
  • Women face greater difficulty than any other category of crime, in convincing police of the validity of their claims and before the NSW reforms, half of all cases were rejected by police.
  • “Sexual violence most commonly takes place in the context of otherwise ordinary patterns of heterosexual social-sexual interactions and, contrary to many commonsense views, sexual attacks by ‘perverted’ strangers are the exception, not the rule.”
  • Elizabeth Wilson suggests that for many men who commit acts of sexual violence, they are ‘incidental and not very remarkable’ acts.
  • The myth that when a women says no she does not necessarily mean it reflects a sociological problem which has been institutionalised in the fields of law and forensic medicine and affects judges, lawyers, police officers and juries.
  • “The criminal justice system has routinely focused on the victim-complainant’s conduct, sexual experience and reputation.”
    • “Hitchhiking, accepting a lift home from a party, or dressing or acting in a particular, supposedly sexually alluring manner are among the types of conduct that have over the years been commonly regarded as evidence of consent to sexual intercourse.” Contrast this with acceptance of male violent sexual behaviour.
  • See textbook, pp 694-95 for further statistics and referral to sources.

Sexual assault reform in NSW

[6] In 1981, the Crimes (Sexual Assault) Amendment Act 1981 replaced the common law of rape with a series of graduated offences of sexual assault as well as making some significant evidentiary and procedural changes such as:

  • Removing the immunity for husbands and males under the age of 14 years.
  • Broadening the definition of rape from only penis-vagina penetration to include other humiliating and degrading acts such as anal penetration and penetration with an object.
  • Restrictions were introduced regarding the cross-examination of the complainant on sexual reputation and prior sexual experience.
  • Changes were made to directions to the jury on delay in complaint and corroboration.
  • Offences involving such things as knives or guns remove the requirement for the Crown to prove that sexual penetration occurred and that the victim did not consent to it.

NSW BOSCAR studies examined transcripts of all rape and sexual assault offences entering committal in the period of 18 months before the reforms and 18 months following the reforms. The main conclusions were that there had been:

  • An increase in the reporting of sexual offences.
  • An increase in police acceptance of these reports.
  • An increase of 11.5% in guilty pleas.
  • A decrease of 14.2% in acquittals, leading to a conviction rate of 82.7%.
  • A higher portion of offenders sent to prison.
  • The question of consent was still raised in half of all cases.
  • In the study there were only two cases involving estranged husbands and none involving males under 14 years of age.

See textbook pp 696-97 for referrals to further studies.

The current offences

[7] Sexual assault provisions changed again in 1989, with very little public consultation or notice. They key changes were:

  • In place of the 1981 four-tiered structure, a “simplified” structure provides for three basic offences, three aggravated versions of each and one additional offence of assault with intent to have sexual intercourse.
  • A significant increase in penalties.

The key sexual assault offences in the Crimes Act are now:

  • s 61I Sexual assault:
    • Actus reus: having sexual intercourse with another when there is no consent.
    • Mens rea: knowledge of no consent (expansion of normal definition, see below).
    • Max penalty: 14 years imprisonment.
  • s 61J Aggravated sexual assault:
    • Actus reus: normal sexual assault + circumstances of aggravation. These include (in this section):
      • Intentional or reckless infliction of actual bodily harm to the victim or a person nearby.
      • Threat to inflict actual bodily harm on the victim or a person nearby with a weapon or instrument.
      • The offender is in company.
      • Victim is under 16 years old.
      • The victim is (generally or at the time of the offence) under the authority of the alleged offender.
      • The victim is seriously physically or mentally disabled.
      • The offence is a part of a break and enter with intention to commit this offence or any serious indictable offence (note: specific intent).
      • The offender deprives the victim of liberty before or after the offence.
    • Mens rea: same as sexual assault (except where specific intent).
    • Max penalty: 20 years imprisonment.
  • s 61L Indecent assault:
    • Actus reus: common assault + act of indecency before during or after.
    • Mens rea:
    • Max penalty: 5 years imprisonment.
  • s 61M Aggravated indecent assault:
    • Actus reus: indecent assault + circumstances of aggravation. These include (in this section):
      • The offender is in company.
      • The victim is (generally or at the time of the offence) under the authority of the alleged offender.
      • The victim is seriously physically or mentally disabled.
    • Mens rea: same as indecent assault.
    • Max penalty: 16 years imprisonment.
  • s 61N Act of indecency:
    • Actus reus: committing an act of indecency or inciting another do so.
      • Subsection 1 creates the offence for a victim/person being incited under 16, subsection 2 for people over 16.
    • Mens rea:
    • Max penalty: 2 years if under 16, 18 months if over.
  • s 61O Aggravated Act of indecency:
    • Actus reus:
      • (1) act of indecency when victim/person being incited is under 16 + circumstances of aggravation (same as indecent assault).
      • (1A) act of indecency when victim/person being incited is over 16 + circumstances of aggravation (same as indecent assault).
      • (2) Act of indecency when victim/person being incited is under 10.
      • (2A) act of indecency when victim/person being incited is under 16 + being filmed.
    • Mens rea:
    • Max penalty: 7 years if under 10, 5 years if under 16 (10 if being filmed), 3 years if over 16.

Aggravated sexual assault

[8] The following case law establishes relevant principles for aggravated sexual assault:

  • In RJS,[9] it was held that it was not necessary for the Crown to prove that the accused brought the penknife to the scene intending to use it in an offensive manner, it was sufficient to prove that the accused was using the object in an offensive manner at the time of the commission of the offence (no specific intent).
  • The meaning of the aggravating factor “in the company of another person or persons” in s 61J (2)(a) has been considered in several cases.
    • In Crozier, the court held that mere presence of a person is not sufficient – there must be some encouragement or assistance.
    • In Button; Griffen, the victim was subject to a number of acts of sexual intercourse by a group of five men in a remote bush location. Two of these acts were committed by Griffen some 50 metres away from the group. The High Court regarded the offences as being capable of being committed in the presence of the group.
    • Whilst participation in the common purpose without being physically present is not enough, psychical presence is an elastic concept.
    • Test: coercive effect of the group. There must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender or to intimidate the victim into submission.

Sexual assault in company (commonly known as gang rape) attracted further attention in the context of a number of allegations made against members of football teams from NRL and AFL codes. Because of problems in evidence, none of the cases were ultimately proceeded with.

A new offence was added in 2001 - s 61JA Aggravated sexual assault in company:

  • Actus reus: sexual assault + in the company of others and either:
    1. intentionally or recklessly inflicts actual bodily harm to anyone present, or
    2. threatens to inflict actual bodily harm with a weapon to anyone present, or
    3. deprives the liberty of the victim before or after the offence.
  • Mens rea: knowledge.
  • Max penalty: life imprisonment.

The abolition of the common law immunities

[10] There used to be common law immunities against sexual assault for children under 14, and for for husbands against wives. These were removed by ss s 61S and s 61T respectively.

In L, the High Court upheld the validity of SA legislation abolishing the marital immunity:

  • The Court held that there was no inconsistency between the immunity and the Family Law Act 1975 (Cth) and Marriage Act 1961 (Cth).
  • The court also doubted that the immunity had been more than a fiction, but to the extent that it was ever common law that by marriage a wife gave irrevocable consent to her husband, it was no longer the case.
    • Even if the martial immunity doctrine can now be characterised as a fiction, it is a fiction which has had significant effect for centuries, not least in the minds of prosecutors and police.

Homosexual law reform

[11] Before 1984, the Crimes Act contained a number of offences which criminalised sexual intercourse and other sexual contact between males. The most serious offence was the crime of 'buggery' (sodomy). In 1984, these offences were repealed and new ones enacted which applied to sexual acts with males under the age of 18 years (ss 78H-78Q), for which consent was no defence.

  • In 2003, the offences were repealed in recognition that they were discriminatory and out of line with legislation in other communities and well as perpetuating an irrational distinction between homosexual and heterosexual activity.
  • The Bill first contained a proposal to retrospectively decriminalise or provide a defence to offences committed under the old legislation but this clause was withdrawn.
  • The Bill was subject to a rare conscience vote in both major parties and there was considerable opposition to the above clause amongst conservative members from both sides of the House.

Sexual Intercourse

[12] The definition of sexual assault (expanded from the limited one of penetration of the vagina by the penis) is found in s 61H:

61H Definition of “sexual intercourse” 

(1) 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, or
    (d) the continuation of sexual intercourse as defined in paragraph (a), (b) or
        (c).

The definition covers a wider range of conduct and uses more gender neutral language.

Consent

[13] Important reforms to laws applying to consent were enacted in 2007. Before 2007, consent was not positively defined in the Crimes Act, s 61HA:

  • (2) Meaning of consent (relevant to actus reus): a person consents to sexual intercourse only if the person freely and voluntarily agrees to the sexual intercourse.
  • (3) Knowledge of consent (relevant to mens rea): the mens rea standard of 'knowledge' is expanded for the purposes of a lack of consent. Knowing about a lack of consent is defined as follows:
    • Actual knowledge that there is no consent.
    • Recklessness as to whether the person consents.
    • Lack of reasonable grounds for believing there is consent.
      • Note: steps taken by the accused to ascertain consent are to be considered. Self-induced intoxication is not taken into account.
  • (4) Negation of consent (relevant to actus reus): a person automatically does not consent to sexual intercourse if the person:
    • Doesn't have the capacity to consent (eg, because of age or mental disability).
    • Doesn't have the opportunity to consent (eg, because unconscious or asleep).
    • Consented under threats (whether to them to to another).
    • Consented because they are unlawfully detained.
  • (5) (consent by fraud and mistake) (relevant to actus reus): If the person consents under one of the following mistaken beliefs, he does not consent to sexual intercourse, and if the accused knew of the mistaken belief, he is treated as knowing of the lack of consent:
    • belief as to the identity of the accused, or
    • belief that the accused is married to the person, or
    • belief 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).
  • (6) (court's ability to decide consent) (relevant to actus reus): The court may establish that there was no consent on the grounds that:
    • the victim was substantially intoxicated.
    • the victim was intimidated or coerced (does not necessarily involve the use or threat of force).
    • the victim had intercourse because of an abuse of a position of authority or trust.
  • (7) the lack of actual physical resistance does not automatically signify consent (relevant to actus reus):.
  • (8) this section is not exhaustive.

Cognitive incapacity is defined in s 61H to pretty much include any sort of mental disability.

Consent induced by fraud and mistake

Section 61HA(5)(a) and (b) provides that consent obtained through a mistaken belief as to the identity of the other person or under the mistaken belief of marriage is not to be taken as consent.

GD Woods notes three types of ‘mistake’:

  1. Mistake as to the nature of the sexual act. a person who does not understand the nature of sexual intercourse cannot consent to it: Flattery.[14]
  2. Mistake as to the identity of the other party, such as where a man takes advantage of a sleepy or perhaps slightly drunk woman to slip into bed with her in the dark, pretending to be her husband or regular lover.
  3. Mistake as to qualification or aspect of the character of the other party e.g. that they were a movie star. This is not illegal, though it is certainly morally wrong. Such a misrepresentation occurred in Papadimitropoulos[15] where a bureaucratic exchange at a registry office was portrayed as a form of marriage. There was no fraud as to identity because there was no misapprehension as to the physical nature of what occurred between the supposed newlyweds.

In Mobilio,[16] the Victorian Court of Criminal Appeal followed Papadimitropoulos and held that a radiographer who had inserted an ultrasound transducer into the vaginas of numerous patients, not for medical purposes but for sexual gratification, was not guilty of rape, as the patients’ mistake did not go to the nature and character of the act. The Victorian legislature reversed the effect of the decision and NSW followed suit.

Consent: shifting, blurring, clarifying

According to Nagaire Naffine “a major problem with shifting and then clarifying the line which divides uncoerced sex from rape is that in a patriarchal culture such distinctions are constantly being blurred... heterosexual sex can be coercive even when there is no overt violence or struggle. Often heterosexual sex is the result of the application of pressures of a social, cultural and economic nature. The result of substantial inequalities between the sexes”.[17]

  • Jann Matlock challenges “How do we exchange a system where a woman’s word is distrusted simply because she’s female without substituting a system where her word is believed simply because she’s female?”.[18]
  • Carol Smart notes that “a woman may agree to certain amount of intimacy, but not to sexual intercourse. In the legal model, however, consent to the former is consent to full intercourse”.[19]
  • Catharine A MacKinnon says that “Rather than avenging or deterring rape, the state, in many victims’ experiences, perpetuates it. Women who charge rape say they were raped twice, the second time in court”.
  • J Vega asserts that the “feminist approach to sexual violence actually implies an antagonism between the sexes that is seen as fundamental and, in the end, to a rigidly set difference between the sexes.” The commentator sees consent as a “social fact".[20]

Recklessness as to consent

Recklessness as to consent (when the accused considered that the victim might not consent yet continued anyway) constitutes sufficient mens rea according to the new s 61HA (3)(b). This is a recognition of previous common law principles in Hemsely[21] and DPP v Morgan.[22])

In Kitchener [23], the court held that failure to advert at all to the possibility that the complainant is not consenting, necessarily means that the accused is reckless as to whether the other person consents. This type of behaviour (not even considering the possibility at all, despite it being obvious) is usually termed inadvertent recklessness.

This was discussed in Tolmie:[24]

  • Facts: The complainant and the appellant were among a group of people who had been drinking, as they walked down a path the appellant asked the complainant to come to him at the back of the group and propositioned her. She repeatedly told him to stop and they ended up on the ground where he sexually assaulted her.
  • Held: recklessness can be shown where the accused adverts to the possibility of consent but ignores it and also where the accused is so bent on gratification and indifferent to the rights of the victim as to completely ignore consent.

Another example is Banditt [25], where the accused broke into the victim’s house and commenced intercourse with her while she was asleep, the court held that “he was reckless in the sense that he did not even consider whether she was going to consent or not, or at least he recognised that there was a possibility that she may not consent but he went ahead anyway.”

Indecent Assault

An indecent assault is the combination of a normal assault and an act of indecency (indecent act). The principles of an indecent assault are described in Fitzgerald v Kennard: [26]

  • Facts: the accused was a visiting electrician who rubbed the householder’s legs and attempted to touch her breasts.
  • Held:
    • Actus reus: either of the actus reus' of assault (physical contact without consent or lawful excuse /act causing apprehension etc)+ an indecent act.
      • These acts do not have to be separate - the indecent act can also constitute the act of assault.
    • Mens rea: the mens rea for the relevant act of assault (recklessness/intention to physical contact the accused/cause apprehension) + knowledge as to a lack of consent.
      • Knowledge as to lack of consent extends to recklessness about consent (including inadvertent recklessness).

What constitutes an indecent act was discussed in Harkin:[27]

  • Indecency “simply means contrary to the ordinary standards of morality of respectable people within the community”.
  • However, it must have a sexual connotation.

Act of indecency (the offence)

The offence of committing "an act of indecency with or towards a person" was developed to cover situations where contact did not amount to assault, such as where the victim was a child who voluntarily touched the accused.

  • An act of indecency with a person requires two participants, while an act towards a person is committed on a non-participant.[28]
  • In Barrass,[29] it was held that an act of indecency does not require immediate physical presence and thus masturbation in a car adjacent to a school bus was sufficient.

End

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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. .
  2. Chapter 5, Sexual Offences Against the Person, Report (1999).
  3. [1975] 2 NSWLR 521 at 524-5.
  4. Textbook, pp. .
  5. R Hogg and D Brown, Rethinking Law and Order, (1998).
  6. Textbook, pp. .
  7. Textbook, pp. .
  8. Textbook, pp. .
  9. (1993) 31 NSWLR 649.
  10. Textbook, pp. .
  11. Textbook, pp. .
  12. Textbook, pp. .
  13. Textbook, pp. .
  14. (1877) 2 QBD 410.
  15. (1957) 98 CLR 249.
  16. [1991] VR 339.
  17. A Struggle over Meaning: A feminist Commentary on Rape Law Reform” (1994) 27(1) ANZ J of Criminol 100.
  18. Scandals of Naming: The Blue Blob, Identity and Gender in the William Kennedy Smith Case, in M Garber et al (eds), Media Spectacles (1993).
  19. Feminism and the Power of the Law, (1989) 33-4.
  20. Coercion and Consent” Classic Liberal Concepts in Texts on Sexual Violence, (1988) 16 International Journal of Sociology of Law 75.
  21. (1988) A Crim R 334.
  22. [1976] AC 182.
  23. (1993) 29 NSWLR 696.
  24. (1995) 37 NSWLR 660 (NSWCCA).
  25. [2005] HCA 80.
  26. (1995) 38 NSWLR 184.
  27. (1989) 38 A Crim R 296.
  28. Chonka [2000] NSWCCA 466.
  29. [2005] NSWCCA 13.
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