LAWS1016 Sexual Offences Flashcards
Elements of Sexual Assault
AR
- Sexual Intercourse
- Without Consent
MR
- Intention to engage in sexual intercourse.
- knowledge, advertent recklessness, or inadvertent recklessness as to lack of consent.
Definition of Sexual Intercouse
S61H(1)(a) Sexual intercourse = (a) vaginal penetration (including surgically constructed vagina) or anal by (i) any part of the body or (ii) any object manipulated by D; (b) penis in mouth; (c) female oral ;(d) the continuation of sexual intercourse as defined by (a)(b)(c).
Definition of “Consent”
S61HA(2) a person consents to sexual intercourse if they “freely and voluntarily” agree to it (i.e. no duress).
S61HA(4) consent is negated if (a) person does not have the capacity to consent due to age / cognitive disability (b) person does not have the opportunity to consent because they are unconscious / asleep (c) person had consented due to threats of force / terror (whether the threats are against, or terror instilled in, that person or any other person) (d) person had consented because they are unlawfully detained.
S61HA(5) consent is negated if person who had consented was mistaken belief (a) as to identity (b) that other person is married to her (c) that sexual intercourse is for health / hygienic purposes (or any other mistaken belief about the nature of the act induced by the fraudulent means). e.g. [Flattery] doctor said he was performing surgery when in fact sexual intercourse – mistake as to the nature of the act (+); [Papadimitropoulous] thought they were registered as married – mistake as to status (rather than identity) (+); mistake as to personal characteristic such as movie star / wealthy (-).
S61HA(6) consent may be negated if (a) victim substantially (no definition) intoxicated by alcohol / drug (b) intimidatory / coercive conduct / any other threat which does not involve a threat of force (c) sexual intercourse was due to an abuse of a position of authority or trust. Ultimately, P must prove that there was no consent. (Aitken) believed undercover security officer, threat was made to inform security of shoplifting (+).
S61HA(7) failure to offer actual physical resistance, is not, by reason only of that fact, to be regarded as consent.
Definition of MR / Knowledge
S61HA(3) D possess knowledge of non-consent if (a) person knows (b) person is reckless (advertent / inadvertent) as to whether the other consents (c) person has no reasonable grounds for believing that other has consented (i.e. objective test). In assessing D’s state of mind, court must have regard all the circumstances of the case including (d) any steps taken by the person to ascertain consent (e.g. ongoing relationship v service provider therapist), but (e) not including any self-induced intoxication of the victim.
Definition of S61HA(3)(b)
“Advertent Recklessness”
accused was aware of the possibility (as opposed to the higher threshold of probability (Hemsely)) that victim did not consent, but went ahead anyway (Banditt).
Definition of s61HA(3)(b) “Inadvertent Recklessnes”
accused failed to consider whether victim was not consenting, and proceeded even though the risk that victim was not consenting would have been obvious to someone with the accused’s mental capacity if they had turned their mind to it (Tolmie).
Circumstances where recklessness is insufficient.
S61HA(5) final clause: P must prove that D possessed actual knowledge that complainant had consented on the basis of a mistake – recklessness insufficient.
(Gillard) sisters stayed with father’s friend over summer holidays for 10 yrs, abuse of authority under ACT legislation similar to NSW s61HA(6)(c). HCA held that recklessness is insufficient – P must prove that D possessed actual knowledge that complainants had consented on the basis of the abuse of authority. Equivalent to s61HA(5) final clause, however, s61HA(4) and (6) do not contain this clause.
Test for “in company”
Test: participation in common purpose AND physical presence required (FP v R).
Aggravated Sexual Offences
S61H definition of sexual intercourse, cognitive impairment, under authority, indecency.
S61HA definition of consent.
s61I sexual assault.
S6J(1) aggravated sexual assault.
S61JA(1) aggravated sexual assault in company.
S61K assault with intent to have sexual intercourse.
S61T offender married to victim does not bar conviction under s61I, J, JA, K.
S66C(1) sexual intercourse with child between 10 and 14.
S66C(2) aggravated sexual intercourse with child between 10 and 14.
S66C(3) sexual intercourse with child between 14 and 16.
S66C(4) aggravated sexual intercourse with child between 14 and 16.
Circumstances of Aggravation
(2) (a) Intentional / recklessly inflicts ABH on victim or present / nearby person.
(2) (b) Threatens to inflict ABH on victim or present / nearby person by means of an offensive weapon / instrument.
(2) (c) In company.
(2) (d) Victim under 16.
(2) (e) Under authority of offender (generally or at time of commission of offence).
(2) (f) Victim possesses a serious physical disability.
(2) (g) Victim possesses a cognitive impairment.
(2) (h) Broke and entered into victim’s dwelling-house or any other building with intent to commit the offence or any other serious indictable offence.
(2) (i) Victim was deprived of liberty.
