Attempted Sexual Violation

Question 1

Section 129 of the Crimes Act 1961 creates two distinct offences:
- subsection (1) Attempted sexual violation
- subsection (2) Assault with intent to commit sexual violation.

Both subsections cover situations where the offender intends to sexually violate the complainant and takes steps towards doing so, but the full offence is not committed.

Although in practice there may be some overlap between the two offences, they are distinguished on the basis that:

Answer 1

• an attempt to commit sexual violation does not necessarily involve an assault
• an assault with intent to commit sexual violation may not be sufficiently proximate to the full offence to constitute an attempt.

Question 2

Intent to commit offence

To prove the offence of attempts the Crown must prove:

Answer 2

The defendant intended to commit the full act of sexual violation, and acted as he did for the purpose of achieving that aim.

Question 3

Difference between sexual violation and attempted sexual violation

Answer 3

In the attempt, the offender was unsuccessful in effecting the intended sexual connection. The mental elements of the two offences, in terms of intent and reasonable belief in consent, are the same.

Question 4

With attempted Sexual Connection the crown must prove that at the time of the defendant’s conduct they:

Answer 4

• intended to have sexual connection with the complainant, and
• the complainant did not consent to the intended sexual connection; and
• the defendant did not believe on reasonable grounds that the complainant was consenting

Establishing that the defendant was reckless as to whether or not the complainant was consenting satisfies the requirement that any belief in consent was not held on reasonable grounds.

Question 5

Sufficiently proximate

Answer 5

In assessing proximity, the Court will analyse the defendant’s conduct at the relevant time, in conjunction with evidence of his intent based on the circumstances and any steps taken leading up to that point.

This cumulative assessment may allow the court to infer that the defendant had intended to commit the full offence and had started to do so, even though he may still have been several steps removed from the ultimate act.