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Sexual Assault Notes

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3. Sexual Assault

* Try to keep the sexual assault as a distinct category of offence, different from assault. Gender nature

* Female nature, and also male victims are more reluctant to report the injury.

* People even may not perceive the possibility of the sexual assault. Law attempted to address problems associated with investigation and trial process No longer required to warn jury of dangers of accepting uncorroborated evidence of a person alleging a sexual violation.

* Though not under a duty to give the direction, still may give if the judge think it is necessary.

Background Social Context and problems of sexual assault: R Hogg and D Brown, Rethinking Law and Order R Hogg and D Brown, Rethinking Law and Order

* The central problem is the notorious under-reporting of the incidence of violence against women in which the victim was known to the offender, either intimately or casually.

* In this study, almost half of all cases of sexual violence occurred between person know to each other as friends, acquaintances, family, neighbours or work associates.

* There are obvious reasons for concluding that many victims who know their assailants are less likely to report the crime.
When women do report these crimes, they face greater difficulties than in any other category of crime in convincing police that their complaints are valid.

* In dealing with crimes of sexual violence, the criminal justice system has routinely focused on the victimcomplainants's conduct, sexual experience and reputation because they may play an important part in the perpetrator's understanding and definition of the situation.

* The legal system has historically been directly implicated in the reproduction of certain patterns of male sexual violence against women. For at least the last century, the legal system has differentiated between credible and unacceptable allegations of sexual violence by examining prior sexual experience of the victim-complainant, her sexual reputation and her conduct at the time of the crime. Police, judges and juries have often determined the credibility of a complaint of sexual violence by reference to the complainant"s conduct, in particular whether it could be construed as having precipitated the sexual encounter in question.

* Perceptions of the conduct and moral status of the victim-complainant have been a crucial factor in legally defining crimes of sexual violence and determining the culpability of the alleged offender.
Thus 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.

* Police, lawyers and judges have often been derisory in their treatment of complainants who have acted in such "sexually provocative" ways.
*> This may be contrasted with the understandings of "normal" male sexuality implicit in claims that conduct such as accepting a lift or dressing in a particular manner was sufficient of itself to lead a man to believe a woman was consenting to sexual intercourse.
However, in a system of laws which is directed at protecting the bodily integrity of its citizens, there is no place for the assumption that the manner of dress of a victim, her sexual history, the fat that she was hitchhiking or any other extraneous aspect of her conduct are in themselves relevant to whether or not she consented to have sexual intercourse.
Much greater attention must be given to schooling young males in the norms of sexual civility and fostering positive, non-predatory male sexual mentalities and identities. Primary Statutory Provision Governing Sexual Assault Crimes Act 1900 (NSW), Part 3, Division 10

* 61I Sexual assault

* 61J Aggravated sexual assault
61JA Aggravated sexual assault in company

1 3. Sexual Assault

* 61L Indecent assault
61M Aggravated indecent assault

* 61N Act of indecency
61O Aggravated act of indecency

* 61K Assault with intent to have sexual intercourse

s 61I: 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. Problem question:

* Yes, A could be liable for sexual assault according to s 61 of the Crimes Act.

* ...

Differentiate them: (different degree)

* (4) not consent

* (5) the victim give consent, but the consent is not valid;

* (6) the victim give consent, but the consent may not be valid.

61I Sexual Assault

Physical element (Actus Reus) Sexual intercourse with a person without consent of that person.

* Sexual intercourse with a person (conduct).

* Definition of sexual intercourse: 61H

* Circumstance: without the consent of that person
Lack of consent is the key issue that the prosecution must prove.
Thus the victim's state of mind before and during sexual intercourse with the accused is always relevant.
Consent is a question of fact --> leave to the jury.
Note, lack of consent plays a dual role in sexual assault: it defines both the physical and fault element.
If the accused claims that the victim consented to sexual intercourse, then the accused is claiming:
*> that the sexual intercourse was consensual (actus reus);
*> that the accused believed the intercourse to be consensual (mens rea).

* Consent now defined: 61HA(2): Mueller (2005)

* Situation where consent is negatived: 61HA(4)-(7)

* Negation of consent. -->The victim is not deemed as consenting to the sexual intercourse:

* if the victim does not have the capacity to consent --> age or cognitive capacity (4)(a): Muller

* if the victim does not have the opportunity to consent --> unconscious or asleep (4)(b): Saibu; Banditt [2005]

* if the "consent" arising from threats of force or terror (definition of threats: Aiken [2005]) (4) (c)

* if the "consent" arising from the victim's being unlawful detained (4)(d)

* Victim's consent is not valid if the accused knows the victim consents to sexual intercourse under such a mistaken belief (5)(a)-(c)

* if the victim under a mistaken belief as to the identity of the accused (5)(a)

* if the victim under a mistaken belief that she has been married to the accused (5)(b): Papadimitropoulos (1957)

* if the victim under a mistaken belief that the sexual intercourse is for medical or hygienic purposes or any other mistaken belief about the nature of the act induced by fraudulent means (5)(c): Mobilio ;Williams [1923]

* Victim's consent may not be valid when:

* the victim has been substantially intoxicated by drugs or alcohol (6)(a)

* the victim has "consented" to the sexual intercourse because of threats (intimidatory or coercive conduct, threat that does not involve a threat of force) (6)(b) (threat: Shaw) (coercive conduct:Waager)

* the victim has "consented" to the sexual intercourse because of the abuse of position of authority or trust (6)(c)

* The mere fact that the victim does not offer actual physical resistance to sexual intercourse is not to be regarded as consenting. (7)

Mental element (Mens Rea) Intent to have sexual intercourse with knowledge that the other person does not consent. 2

3. Sexual Assault Strict Liability The bottom line is no reasonable grounds Objective standard in :

* Sexual assault

* Dangerous driving

* Meaning of knowledge: defined in s 61HA (3)

* Knowledge about the consent -->for the prosecution to prove the accused has the knowledge of the victim's involuntariness where

* the accused knows that the victim does not consent to the sexual intercourse (3)(a)

* the accused is reckless as to whether the victim consents to sexual intercourse or not (3)(b):Tolmie (1995)

* the accused has no reasonable grounds for believing the victim consents to the sexual intercourse (3)(c)

* In considering whether the accused has the knowledge of the victim's involuntariness, two more considerations:

* any steps taken by the accused to ascertain the victim's voluntariness (3)(d)

* the accused's defence as intoxication should not be considered when it is a self-induced intoxication (3)(e) -->Can be taken into account if it is not self-induced.

Knows: s 61HA(3)(a)
Knowledge as to Recklessness: s 61HA(3)(b)

1. Victim was a young woman living in a home conducted by a caring institution as she was suffering from a disability known as asperger's syndrome.

2. The appellant was employed at this home as a care-taker.

3. The two were sitting on a couch and the appellant touched and kissed the victims breasts (count 1), proceeded to bit her nipples (count 2), touched her vulva outside her clothing (count 3), kissed her vulva outside her clothing (count 4), and subsequently sat with the victim on her bed and forced her to touch his penis (count 5).

4. The appellant admits to counts 3 and 4 but claims they were consensual.

5. The crown put the issue of consent to the jury in two ways:

* the complainant lacked the capacity to consent, and

* the complainant did not consent in fact.

1. The victim had been observed shoplifting by the accused and he advised her that he could help her.

2. Believing that he was an undercover store security officer, the victim followed the accused to the shopping centre toilet where he locked the door and sexually assaulted her.

3. On appeal by the accused. Held, his conviction was quashed upon appeal and the court held that she consented under the mistaken belief that he was a security officer and this was a non-violent threat. s 65A and s 61I have now been repealed.

* Confirms common law: recklessness as to consent will satisfy the fault element: DPP v Morgan

* Two state of mind will amount to recklessness, higher standard than the normal meaning of recklessness, not only foresee that the victim may not consent.

* Reckless advertence (subjective advertence)

* Foresight of (realises) the possibility that the other person was not consenting: DPP v Morgan [1976], McEwan, Banditt [2005]

* Previously a subjective test under common law: 'Morgan Defence': DPP v Morgan [1976], Banditt [2005]
An accused cannot be found guilty of sexual assault if he holds an honest belief, however unreasonable, that the victim consented. Evidence of unreasonableness may, however, go to the question of honesty: DPP v Morgan [1976].

* Reckless inadvertence

* Accused fails to advert to or consider whether the other person was consenting or not: Kitchener (1993); Tolmie (1995); Mueller [2005]; Banditt [2005]
No reasonable grounds for believing other person consents: s 61HA(3)(c)

* According to Dobinson and Townsley (2008) displaces the 'Morgan defence' and introduces an objective fault component in the MR for sexual assault.
Circumstances to be considered by tier of fact: s 61HA(3)(d)-(e) Definition of Consent R v Mueller [2005] NSWCCA 47

* Silence of absence of positive resistance to an unwanted sexual advance is not to be taken as consent, or as a communication of consent." All that [the complainant] could be said to have done is submitted...submission is not the same as consent.

* Studdert J: In the context of the law of rape, it is well established that the consent must be free and voluntary.

* I consider that were consent is withheld, a 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' within the meaning of s61D(2). Negative Consent Aiken [2005] NSWCCA 328 Interpretation of "threats or terror" 3

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