Criminal Law – 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’oInfused criminal justice process oImplication: 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 oPurpose: focus on issue of violence rather than issue of sexual act; importance of consent •Graduation of offences: oCategory 1: inflicting gbh with intent to have sexual intercourse oCategory 2: inflicting abh with intent to have sexual intercourse oCategory 3: sexual intercourse without consent.

oCategory 4: Indecent assault •Common law immunities abolished: oHusbands: 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 oMales 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: o1984 oPrior: offence to occur oAge 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 conduct or other threat (c) abuse of a position of authority or trust Position of authority – s61H(2) ‘a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person. ’ (7) (relates to evidentiary matters) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse (8).

This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse – just because it does not fall within in 4-6 that consent isn’t necessarily negated Arguments: Naffine – pressures to have sex; social, cultural, economic Matlock – common understanding between sexes; no being read as no + consequences if read as yes Smart – (binary opposites) guilty/not guilty; rape consent/no consent; submission – fits on consent side; innocence of accused is presumed MacKinnon – injury of rape lies in meaning of the act to its victim; standard for its criminality lies in the meaning of the same act to the accused MR: 1.

For sexual intercourse – not stated – assume subjective – He Kaw The (1) for consent: (a) knows the person does not consent – s61HA(3)(a) (b) Reckless as to other person’s consent – advertent – s61HA(3)(b) – Hemsley – counsil argued: (D) had foreseight of possibility that she was not consenting and went ahead anyway, Banditt – analogy of Hemsley applied here (c) Reckless as to other person’s consent – inadvertent – s61HA(3)(b) – Kitchener – brd accused at relevant time foresaw possibility of lack of consent/ failed to advert to consent and went ahead…fail to turn mind at all, Talmie , Banditt – term should actually be defined for jury.

Can have both subjective and objective meaning *does not refer to what is going on in the mind of the offender as they are not thinking about it at all (d) Honest blief that victim was consenting, but no reasonable grounds for that belief – s61HA(3)(c) ‘the other person knows that the person does not consent to sexual intercourse if the other person knows consent to sexual intercourse under such a mistaken belief’ Aggravated (20 years)/ (s61JA) aggravated in company (life): S61J: (1) sexual intercourse; without the consent; in circumstances of aggravation; knows that the other person does not consent (20 years) Elements: 1.

AR Sexual intercourse / MR intention 2. AR without consent / MR knows that the other person does not consent 3. In circumstances of aggravation – AR and MR depend on which subsection of s61J (2) is being used (2) circumstances of aggravation: a. intentionally/recklessly inflicts actual bodily harm; victim or any other person 3A: AR inflicts actual bodily harm before, during, after (ii) on person or another MR: intentionally/recklessly (3) (b) threatens to inflict actual bodily harm; offensive weapon or instrument 3B: AR: I. Threatens to inflict actual bodily harm before, during, after II. on another person present or nearby.

II. by means of an offensive weapon – s4 def of offensive weapon S4 Offensive weapon/instrument means: (a) dangerous weapon (b) any thing made/adapted for offensive purposes (c) intended for use/threatened to be used for offensive purposes MR: not stated; presumption it is subjective HE KAW THE; RJS – don’t need to prove there is intention that instrument brought to scene and intending to use in offensive manner as long as it is used at time of commission of offence S61J(2)(c): In company -Crozier (1996); mere presence is not sufficient must be some encouragement/assistance -Button (2002); physical presence is an elastic concept; test: coercive effect of group operate to embolden or reassure offender/ intimidate victim into submission S61J(2)(d): Victim is under the age of 16 years AR:

Victim is under age of 16 years MR: Statute is silent, so presumption it is subjective (HE KAW TEH) However, CTM (2008), mens rea element may in fact be strict liability. S61J(2)(e): Under the authority of the alleged offender AR: Under the authority of alleged offender MR: Not stated, but presumption of subjective (HE KAW TEH) S61H (2) in the care, or under the supervision or authority S61J(2)(f) Serious physical disability AR: victim has serious physical disability.

MR: not stated, so presumption it is subjective (HE KAW TEH), but may be rebutted by analogy with CTM (2008) + strict liability may apply S61J(2)(g) cognitive impairment AR: cognitive impairment MR: not stated, subjective, strict liability S61H(1A): (a) – (f) lists all the various forms of disability S61J(2)(h) breaks and enters; intention of committing the offence; any other serious indictable offence AR: enters into any dwelling/house/other building MR: intention of committing: (i) offence of sexual assault without consent (ii) any other serious indictable offence a. s4: punishable by imprisonment for life or for a term of 5 years or more.

S61J(2)(I) Deprives the alleged victim of his or her liberty AR: Deprives victim of liberty before or after offence MR: not stated, so presumed subjective (HE KAW TEH) S61JA Aggravated sexual assault in company (1): (a) sexual intercourse; without consent; who knows that the other person does not consent (b) in the company of another person(s) (c) who: (i) intentionally/recklessly inflicts actual bodily harm (ii) threatens to inflict actual bodily harm on the alleged victim or any other person; offensive weapon (iii) deprives the alleged victim his/her liberty (for life) (2) for life: serve that sentence for the term of the person’s natural life *life imprisonment is regarded as last resort – ‘(4) prerogative of mercy’ S61K Intercourse: (a) intentionally/recklessly inflicts actual bodily harm (b).

Threatens to inflict actual bodily harm/ offensive weapon or instrument -20 years -no need to prove lack of consent Elements: 1A: inflict actual bodily harm – MR: intentionally/recklessly 1B: i. threatens to inflict actual bodily harm ii. person/third person present or nearby iii. by means of an offensive weapon/instrument (MR: not stated, so presumption subjective) 2 MR: intent to have sexual intercourse with another person S61L Indecent assault Assaults; act of indecency on or in the presence of the other person; 5 years Elements:

1. Assault – during, before, after (FITZGERALD 1995 – 100% complainant wanted to be touched; didn’t enter mind – inadvertent recklessness) -Common law assault: AR: Threat so victim has reasonable apprehension of immediate and unlawful personal violence MR: Intention/recklessness -Common law battery: AR: Unlawful touching without consent MR: Intention or recklessness (includes inadvertent recklessness) HARKIN (1989) – indecent assault has to have some sort of sexual connotation S61M Aggravated indecent assault (1) assaults; circumstances of aggravation; commits an act of indecency (liable for imprisonment for 7 years) (2) assaults; commits an act of indecency (liable for imprisonment for 10 years if the other person us uner the age of 16 years (3).

Circumstances of aggravation: a. In the company b. (Repealed) c. Under the authority d. Serious physical disability e. Cognitive impairment S61N Act of indecency (1) commits an act of indecency with or towards; under the age of 16 years; incites (liable to imprisonment for 2 years) Elements: AR: 1A Commits an act of indecency (HARKIN 1989) 2A with a person (CHONKA 2000).

2B towards another person (CHONKA 2000) 1B Incites a person to an act of indecency 2A with that or another person (CHONKA 2000) 2B towards that or another person (CHONKA 2000) 3 Under age of 16 years (BARRASS 2005) MR: not stated, presumption subjective S61O Aggravated act of indecency (1) act of indecency with/towards a person under the age of 16 years; circumstances of aggravation (1A) act of indecency with/towards a person; 16 years +; circumstances of aggravation – liable for imprisonment for 3 years (2) act of indecency with/towards; under the age of 10 years (liable to imprisonment for 7 years) (2A) A person:

(a) act of indecency; under the age of 16 years; incites (b) Being filmed for the purposes of the production of child abuse material Max penalty: 10 years (3) Assault with intent to have sexual intercourse (s61K 20 years) (4) Indecent assault (s61L 5 years) / aggravated (s61M 7 years) *Common law required (5) Act indecency (s61N 2 years) / aggravated (s61O 5-7 years) Definition sections:

•S61H: oSexual intercourse: S61H: (1)(a) penetration; genitalia (including surgically constructed vagina) of a female person; anus of any person (i)any part of the body of another person (ii)any object manipulated by another person except; proper medical purpose (b) penis of a person into the mouth (c) cunnilingus – oral stimulation of female genetalia (d) continuation of sexual intercourse oCognitive impairment: oUnder authority: •S61HA Consent: oActus Reus + Mens Rea issues Indigenous issues case study – Arukun rape case Facts:

7 juveniles, 2 adults raped a 10 year old girl on 12 occasions – May and June 2006 Issues: -Interaction between media, judicial, political processes -Aboriginality as dysfunctional in Indigenous sentencing initiatives which seek to recognise chronic disadvantage as a mitigating factor in sentencing Indigenous offenders Chronology:

June 2007: reported to Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse October 2007: sentencing by Judge Bradley Sentencing: -failed to comply with Juvenile Justice Act 1992 (QLD) and Penalties and Sentences Act 1992 (QLD) -Prosecutors: argued common within community -Defence: assurance to court that clients will abide by white law; claimed victim knew what was happening The effect: -Irene Watson: ‘Contributed to making invisible the harm that is done to Aboriginal women’ Media representation:

-Abuse itself was missing from the story -Normalisation of sexual abuse in the Aurukun community -Call for stricter law enforcement and welfare policies across Cape York because of ‘inadequate response’ of the legal system – rather than deploring the facts of the case Justice: -Fail to implement greater self-determination, therefore continues to be defined by or as white law -Fail to identify what ‘justice’ means The argument: -Recognising chronic disadvantage as a mitigating facot in sentencing Indigenous offenders -Reports in case collapsed distinction between dysfunctional ideals and aboriginality. Thus, aboriginiality being viewed as dysfunctional -Understanding why some Aboriginal communities are dysfunctional.