Criminal Law - Sexual Assault

Topics: Rape, Sexual intercourse, Human sexual behavior Pages: 15 (2265 words) Published: September 30, 2014
Sexual Assault
Patterns, context, definitions:

Law reform (’81)–
Importance of feminist contributions – significant to reform of law regarding rape. Definitions:
Sexual assault (NSW)
Unlawful sexual penetration (Commonwealth Criminal Code)
Harm –
Affront to human dignity
Humiliating denial of freedom and equality; Cruel invasion of human privacy (FRASER 1975) Sources of information –
Official statistics
Victim surveys
Discrepancy reveals under-reporting: 14% reported
Relationship between victim and offender – usually known to each other Myths surrounding sexual violence –
Common sense myth: ‘no does not necessarily mean no’
Infused criminal justice process
Implication: discrepancy between woman’s statement regarding consent and male’s perception regarding it Criminal Justice process –
Evidentiary and procedural matters: relevance of victim’s conduct, sexual experience and reputation Impact on actus reus (victim’s actual consent/ non-consent) and mens rea (offender’s understanding of consent / non-consent)

*Issues:
Actus Reus: did the victim actually consent and in what circumstances will it be accepted/rejected Mens Rea: what was going on in the mind of D when engaging in act of sexual intercourse. Awareness of consent/or not? Test?

Criminal justice players: police, lawyers, judges, juries, broader education Schooling young males in the norms of sexual civility
Communication between those engaging in sexual encounters

Sexual assault law reform:

Crime (Sexual Assault) Amendment Act 1981
Key change:
Term ‘rape’ abolished and replaced by sexual assault
Purpose: focus on issue of violence rather than issue of sexual act; importance of consent Graduation of offences:
Category 1: inflicting gbh with intent to have sexual intercourse Category 2: inflicting abh with intent to have sexual intercourse Category 3: sexual intercourse without consent
Category 4: Indecent assault
Common law immunities abolished:
Husbands:
S61T – Offender married to victim:
(a) Is not bar to the first mentioned person being convicted of the offence (b) Is no bar to the first mentioned person being convicted of the attempt

Males under 14 y/old:
S61S – Offenders who are minors:
(1) Not be presumed incapable of having sexual intercourse with another person/ intent to have sexual intercourse (2) Subsection (1) does not affect operation of any law relating to age at which a child can be convicted of an offence

Homosexual law reform:
1984
Prior: offence to occur
Age of consent for males was 18 years of age; later reformed to 16 years of age

Overview of current law :

Basic offences + aggravated circumstances:

1. Sexual assault without consent (14 years)
S61I Sexual assault:
Has sexual intercourse; without the consent of the other person; knows that the other person does not consent

AR: 1. Sexual intercourse: (look at definitions below)

2. Without consent of the other person :
61HA –
(1) Offences to which section applies
This section applies for the purposes of the offences under sections 61I, 61J and 61JA (2) Meaning of consent
Freely and voluntarily agrees

Negation of consent (ineffectiveness) (4)
Person does not consent:
(a) lack of capacity; age/cognitive incapacity
(b) no opportunity to consent; unconscious/asleep
(c) threats of force/terror – Aitken (2005): court considered word of terror; sharp over powering fear; fear needs be strong and substantial; court held placement of threat besides terror suggests the legislature was referring to threats against safety (d) unlawfully detained

S61HA(5) – consent induced by fraud/mistake
(a) mistaken belief as to identity
(b) mistaken belief regarding marriage
(c) mistaken belief is for medical or hygienic purposes
does not consent to the sexual intercourse

(6)May be established that a person does not consent to sexual intercourse: (a) substantially intoxicated by alcohol/any drug
(b) intimidatory or coercive...
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