Sexual Assault

Criminal Laws, S2 2014, Class 14

Revision
1.) How do aggravated assaults differ from the offence of
common assault?
2.)What are some key examples of aggravated assaults in the
Crimes Act 1900?
3.) When will a police officer not be acting in the execution of
his or her duty for the purposes of an aggravated assault
under s 58?
4.) Does the accused need to know that the person assaulted
was a police officer acting in the execution of his or her
duty?
5.) What must the Crown prove to establish that a police
officer was intimidated for the purposes of s 60?

Update: Public Health Act 2010

52 Precautions against spread of certain medical conditions (cf 1991 Act, s 11)
(1) A person who:
(a) has a Category 2, 3, 4 or 5 condition, and
(b) is in a public place,must not fail to take reasonable precautions against
spreading the condition.
Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.
(2) It is a defence to proceedings for an offence under this section if the defendant
satisfies the court that at the time of commission of the alleged offence, the
defendant was not aware that he or she had the medical condition on which the
prosecution is based.

Update: Public Health Act 2010

79 Duties of persons in relation to sexually transmitted infections (cf 1991 Act, s 13)
(1) A person who knows that he or she suffers from a sexually transmitted infection is
guilty of an offence if he or she has sexual intercourse with another person unless,
before the intercourse takes place, the other person:
(a) has been informed of the risk of contracting a sexually transmitted
infection from the person with whom intercourse is proposed, and
(b) has voluntarily agreed to accept the risk.
Maximum penalty: 50 penalty units.

(3) It is a defence to any proceedings for an offence under this section if the court is
satisfied that the defendant took reasonable precautions to prevent the transmission
of the sexually transmitted infection.

Sexual Assault: Background

Changes from common law

Sexual assault not rape
Marital immunity
Age immunity
Patterns of violence
Perceptions/prejudices

Immunities Removed
61S Offenders who are minors
(1) For the purposes of any offence, a person is not, by reason only of age, to be
presumed incapable of having sexual intercourse with another person or of having an
intent to have sexual intercourse with another person. (2) Subsection (1) does not
affect the operation of any law relating to the age at which a child can be convicted
of an offence.

61T Offender married to victim

The fact that a person is married to a person:
(a) upon whom an offence under section 61I, 61J, 61JA or 61K is alleged to have been
committed is no bar to the firstmentioned person being convicted of the offence, or
(b) upon whom an offence under any of those sections is alleged to have been
attempted is no bar to the firstmentioned person being convicted of the attempt.

Structure of Offences
1.) Section 61I:
+ Section 61J:

Sexual Assault (14)

Aggravated Sexual Assault (20)

2.) Section 61L:

Indecent Assault (5)
+Section 61M: Aggravated Indecent Assault (7)
3.) Section 61N:
+Section 61O:

Act of Indecency (2)

Aggravated Act of Indecency (5)

+ Section 61K:

Assault with intent to have sexual intercourse (20)

(+ Section 61P:

Attempts = same penalties)

Sexual Assault: Elements

61I Sexual assault
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.

Actus Reus
1.)
2.)
negated if?
may be negated if?
absence of resistance:

; and

Mens Rea
1.)
2.)
3.)
4.)

; or
; or
; or

Knowledge About Consent

61HA Consent in relation to sexual assault offences
(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 A person "consents" to sexual intercourse if the person freely and voluntarily
agrees to the sexual intercourse.
(3) Knowledge about consent A person who has sexual intercourse with another person without the
consent of the other person knows that the other person does not consent to the sexual
intercourse if:
(a) the person knows that the other person does not consent to the sexual intercourse, or
(b) the person is reckless as to whether the other person consents to the sexual intercourse, or
(c) the person has no reasonable grounds for believing that the other person consents to the
sexual intercourse.

Inadvertent Recklessness and Sexual

Assault
Imagine you are members of Law Reform Commission that needs
to advise the NSW Attorney-General on whether inadvertent
recklessness should be retained as a mental element of the
offence of sexual assault.
Explain the relevant legislation and case law and make an
argument for or against retaining inadvertent recklessness in
the law of sexual assault.

Aggravated Sexual Assault: s 61J

61J Aggravated sexual assault
(1) Any person who has sexual intercourse with another person without the consent of
the other person and in circumstances of aggravation and who knows that the other
person does not consent to the sexual intercourse is liable to imprisonment for 20
years.

Circumstances of aggravation: sub-s (2)

Include ABH, offensive weapon or instrument, in company, under 16 yrs, serious
physical disability
Intent to use offensive weapon or instrument: RJS
Meaning of in company: Button; Griffen

http://www.smh.com.au/national
/australian-woman-laura-bushne
y-claims-midair-sexual-assault
-on-malaysia-airlines-flight-2
0140824-107wzh.html

https://www.youtube.com/
watch?
v=JBgdo3HzdGk

Aggravated Sexual Assault in Company

61JA Aggravated sexual assault in company
(1) A person:
(a) 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, and
(b) who is in the company of another person or persons, and
(c) who:
(i) at the time of, or immediately before or after, the commission of the offence,
intentionally or recklessly inflicts actual bodily harm on the alleged victim or any
other
person who is present or nearby, or
(ii) at the time of, or immediately before or after, the commission of the offence,
threatens to inflict actual bodily harm on the alleged victim or any other person who
is
present or nearby by means of an offensive weapon or instrument, or
(iii) deprives the alleged victim of his or her liberty for a period before or after the
commission of the offence, is liable to imprisonment for life.
(2) A person sentenced to imprisonment for life for an offence under this section is to serve that
sentence for the term of the persons natural life

Indecent Assault: Statute

61L Indecent assault
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, is liable to imprisonment for 5 years.
61M Aggravated indecent assault
(1) Any person who assaults another person in circumstances of aggravation, 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, is liable to imprisonment for 7 years.
(2) 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, is liable to imprisonment for 10 years, if the other person is under the
age of 16 years.
(3) In this section, "circumstances of aggravation" means circumstances in which:
(a) the alleged offender is in the company of another person or persons, or
(c) the alleged victim is (whether generally or at the time of the commission of the
offence) under the authority of the alleged offender, or
(d) the alleged victim has a serious physical disability, or(e) the alleged victim has a
cognitive impairment.

Indecent Assault: Case Law

Fitzgerald v Kennard
Coincidence of assault vs act of indecency
Advertent vs Inadvertent Recklessness
Harkin; Court
Meaning of indecent

Indecent Assault: Elements

1.) Assault (battery assault or assault causing apprehension of harm)
Actus reus: unlawful contact or act causing apprehension of
harm
Mens rea: intention to effect unlawful contact or intention to
cause apprehension of harm (including advertent recklessness:
Macpherson v Brown)
+
2.) Act of indecency
Sexual connotation: Harkin
Offensive to contemporary standards of modesty or privacy:
Court

Act of Indecency
61N Act of indecency
(1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites
a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for
2 years.
(2) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or
incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is
liable to imprisonment for 18 months.
61M Aggravated indecent assault
(1) Any person who assaults another person in circumstances of aggravation, 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, is liable to
imprisonment for 7 years.
(2) 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, is liable to imprisonment for 10 years, if the
other person is under the age of 16 years.
(3) In this section, "circumstances of aggravation" means circumstances in which:
(a) the alleged offender is in the company of another person or persons, or
(c) the alleged victim is (whether generally or at the time of the commission of the
offence) under the authority
of the alleged offender, or
(d) the alleged victim has a serious physical disability, or
(e) the alleged victim has a cognitive impairment.

Act of Indecency (s 61N): With or

Towards a Person

Indecent Act (defined according to Harkin; Court)

Where at least two participants present: Chonka
But does not require immediate physical presence: Barrass
Aggravated offence (s 61M) made out if:
In company, position of power or authority, serious physical
disability or cognitive impairment (3)