Sexual Assault
Articles:
"Luke Lazarus case highlights the need to change our conversation about sexual assault"
http://www.abc.net.au/news/2017-05-06/luke-lazarus-case-should-make-us-reconsider-consent/8502144
Sexual assault charges in NSW fall under section 61 of the Crimes Act 1900, which has replaced the previous common law assertions. The legislation surrounding sexual assault charges is complex, and there is no longer a common law offence of ‘rape’. Generally speaking, as laid out under section 61(L), the three main elements of a sexual assault include a) sexual intercourse, b) a lack of consent, and c) knowledge of the lack of consent.
‘Sexual intercourse’ can include penetration to any extent of the genitalia or anus of any person by; any part of another person; or any object manipulated by another person. Sexual assault can also include the introduction of any part of the penis into the mouth of another person, or cunnilingus. The maximum penalty for a sexual assault offence is a term of imprisonment for 14 years.
The concept of ‘consent’ requires a person to freely and voluntarily agree to have sexual intercourse. A victim does not have to actively say ‘no’ to show a lack of consent, this can be interpreted through the subjective facts, and also in situations where due to consuming alcohol or drugs, a person is no longer able to voluntarily consent to sexual intercourse.
Knowledge that the person has consented or not consented does not need to be concrete, and an accused person who behaves recklessly as to whether or not the victim is consenting can be considered to have the relevant knowledge. In addition a person may satisfy the knowledge requirement if there are no reasonable grounds for believing that the person consents to the sexual intercourse.
What is ‘consent’
The concept of consent although relatively straight-forward in theory, can prove legally complex; particularly in relation to whether the accused person had specific ‘knowledge’ regarding whether or not consent was at issue. The law defines a lack of consent as a) knowing that the other person has not consented; (b) the person is reckless as to whether the other person has not consented, or (c) the person has no reasonable grounds for believing that the other person is consenting to sexual intercourse.
In order to establish whether these elements have been met, the presiding Judge or Jury will examine what steps the accused person made to ascertain whether there was consent or not. It is important to note that self-induced intoxication is not considered a mitigating factor in relation to sexual assault.
There are a number of factors that courts consider that will automatically imply that the other person has not given consent. These include (a) if the person does not have the capacity to consent, due to factors like age or cognitive incapacity, or (b) if the person had no opportunity to give consent such as when asleep, or (c) where the person has given consent due to threats of force or terror, or (d) where the person consents due to the fact that they are unlawfully detained.
Further factors that will infer a lack of consent include issues of mistaken identity, a mistaken belief that the person is married to the other person, or a belief that the intercourse is for medical or hygienic purposes. If a person is substantially intoxicated by alcohol or any drug they will not be able to give consent. If the person has intercourse due to intimidatory or abusive behaviour, or stemming from the abuse of a position of authority or trust, they will be found to have not given consent.
It is important to understand that ‘consent’ does not just refer to actual physical resistance. A person may have given their consent in certain situations where legally, they were not considered ‘able’ to do this in the first place. This is especially true when a child under the age of 16 is concerned, whereby consent is not considered as a defence.
Indecent Assault
A charge of indecent assault falls under section 61L of the Crimes Act 1900, and refers to 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’. The charge carries a maximum prison sentence of 5 years, and covers a wide range of behaviour at various levels of seriousness. The charge of ‘aggravated indecent assault’ falls under s61M and includes an assault in circumstances of aggravation, carrying a maximum prison term of 7 years.
The essential element of an ‘indecent assault’ as separate from other categories of assault is that the assault was indecent. This means that the assault must have a sexual connotation, either deriving directly from the area of the body to which the assault was directed, or arising because the assailant uses their own body which would give rise to a sexual connotation in carrying out the assaults. The prosecution must prove that the act was done with the intention to obtain sexual gratification.
There is an issue of ‘consent’ with indecent assault charges, and the prosecution must prove that the victim did not consent to the assault or to being touched in a particular way. The accused person may either know this directly or otherwise act recklessly in their assessment of whether the victim was consenting or not.
Aggravated Indecent Assault
A charge of ‘aggravated indecent assault’ falls under s61M and includes the same elements of an indecent assault, with an additional element that the assault was ‘aggravated’. An ‘aggravated’ assault in criminal law is a more serious version of the offence. This can be found in cases where the offender was in the company of another person, or where the victim was under the authority of the offender, or where the victim had a cognitive impairment.
It is important to note the distinction between an aggravated indecent assault and an ‘aggravated act of indecency’, which is a charge in itself that does not rely on any assault on the person.
A charge of sexual intercourse with a child falls under section 66A for a child under 10, or section 66C for a child aged between 10 and 16 years old. A charge under section 66A is a very serious offence that carries a life sentence, considered under this section as a sentence for the term of the person’s natural life.
For a charge under section 66C, the legislation distinguishes between a child ages 10 – 14 and aged 14 – 16. Where the child is aged 10 – 14 the maximum term of imprisonment is 16 years. Where the child is aged 14 – 16, the maximum term of imprisonment for 10 years.
In ‘circumstances of aggravation’, the charge will be considered more serious and carry a longer term of imprisonment. Circumstances of aggravation include where actual bodily harm was either intentionally or recklessly inflicted on the person, or where there was a threat of actual bodily harm, where the person acted in company of another, where the alleged victim was under the offender’s authority or control, or had a serious physical disability or cognitive impairment, or where the offender took advantage of the victim being under the influence of alcohol or drugs, or otherwise deprived the victim of their liberty during, before or after the offence.