LAWS1206 Lecture Notes - Lecture 7: Nsw Law Reports, Determinative, Cunnilingus
SEXUAL ASSAULT – WEEK 7
Overview
•Law reform in NSW of sexual assault law
•2007-2008 reforms
•Crimes Act 1900 (NSW) div 10
•ss 61I, 61J, 61JA
•Actus reus of sexual assault
•Meaning of sexual intercourse: s61H(1)
•Who is capable of sexual assault?
•‘Without consent’
•ss 61HA (2), (4), (5), (6), (7), (8)
•Mens rea of sexual assault
•s 61HA(3)
•Aggravated sexual assault offences: ss 61J and 61JA
•Aggravating factor: ‘in company’
‘Rape’ common law
Gendered
Force
Without consent
Law reform in NSW
1981 reforms: statutory offences
oSexual assault category 1 - inflicting GBH with intent to have sexual
intercourse
oSexual assault category 2 - inflicting ABH with intent to have sexual
intercourse
oSexual assault category 3 - sexual intercourse without consent
oSexual assault category 4 - indecent assault and act of indecency
Marital rape reform
oCommon law immunity for rape in marriage abolished in Statute
NSW – 1981 under Crimes (Sexual Assault) Amendment Act 1981
(NSW)
1981 reforms included:
oCommon law immunity for rape in marriage abolished in Statute
oCommon law immunity for males under the age of 14 abolished in Statute
oDefinition of sexual intercourse broadened
1984 reforms
oCrime of buggery was repealed
oSection 79
oWhosoever commits the abominable crime of buggery, or bestiality, with
mankind, or with any animal, shall be liable to penal servitude for fourteen
years.
oBUT new offences enacted dealing with sexual acts with males under the age
of 18.
oFrom 2003 onwards age of consent in NSW is 16 years of age for all persons.
Homosexual law reform
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oNSW – 1984 under Crimes (Amendment) Act 1984 (NSW)
1989 reforms
oSexual assault: s 61I
oPenalties for sexual offences increased
oConsent addressed in s 61R (Note: this section no longer exists)
oAggravated offences introduced: s 61J
From 2001 Aggravated Sexual Assault in Company (s 61JA)
2007 reforms
oSubstantial amendments to NSW sexual assault law commenced on 1 Jan
2008 as a result of the Crimes Amendment (Consent—Sexual Assault
Offences) Act 2007.
flowed from Criminal Justice Sexual Offences Task Force Report
(April 2006) with 70 recommendations
most comprehensive review of the law in 20 years, a broad range of
Govt and non-Govt agencies represented. Attorney General stated:
o‘…not only highlighted the need to change laws and procedures affecting the
prosecution of sexual assault matters but were also aimed at bringing about a
cultural shift in the way sexual offences are investigated and prosecuted, and
the attitudes of key participants within the criminal justice system.’
Reform package aimed to address low levels of reporting of sexual
offences.
Reform
o‘Prevention and reporting require attitudes about the nature of rape and the
nature of male/female relations to change. The beliefs that promulgate male
violence need to be eradicated and women’s relatively powerless position
within Australian society should be radically modified.’
o‘It is, therefore, not sufficient to change legislation; new laws are hollow
promises of what could be if they are not accompanied by shifts in the
attitudes and behaviour of the police and the judiciary.’
oEasteal called for changing attitudes and behaviour:
Changing societal norms (misinformation and mythology)
Changing the criminal justice response
Changing laws
Changing attitudes of courts: judges, lawyers, juries
Changing training and education for police
Current law
Crimes Act 1900 (NSW)
Section 61I Sexual Assault
oAny 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
Any person who has (1) sexual intercourse with another person (2) 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.
Did the complainant consent? R v Olugboja [1982] QB 320
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o‘The jury should be directed to concentrate on the state of mind of the victim
immediately before the act of sexual intercourse, having regard to all the
relevant circumstances; and in particular, the events leading up to the act and
her [or his] reaction to them showing their impact on her [or his] mind.’
oConsent is a question of fact for the jury
Mens rea
Any person who has (1) sexual intercourse with another person (2) without the
consent of the other person and (3) who knows that the other person does not
consent to the sexual intercourse is liable to imprisonment for 14 years.
Knowledge about consent see s61HA(3)
o(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.
oFor the purpose of making any such finding, the trier of fact must have regard
to all the circumstances of the case:
(d) including any steps taken by the person to ascertain whether the
other person consents to the sexual intercourse, but
(e) not including any self-induced intoxication of the person.
‘Sexual assault’ under the current law in NSW requires:
Actus Reus
o‘has sexual intercourse with another person’
D had sexual intercourse with V
o‘without the consent of the other person’
sexual intercourse occurred without the consent of the V
Mens Rea
o‘who knows that the other person does not consent’
D ‘knows’ that V does not consent.
# The meaning of ‘knows’ for purposes of s 61I is defined in s 61HA(3).
S 61HA added to Crimes Act 1900 (NSW)
S 61HA Consent in relation to sexual assault offences
(1) Offences to which section applies
(2) Meaning of consent
(3) Knowledge about consent
(4) Negation of consent
(5) Mistaken belief
(6) Grounds that may establish no consent
(7) Physical resistant not required
(8) This section not exhaustive (ie. common law still exists)
Definition of ‘consent’ added to Crimes Act 1900 (NSW)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Overview: law reform in nsw of sexual assault law. Without consent" ss 61ha (2), (4), (5), (6), (7), (8: mens rea of sexual assault s 61ha(3, aggravated sexual assault offences: ss 61j and 61ja, aggravating factor: in company". Marital rape reform: common law immunity for rape in marriage abolished in statute. Nsw 1981 under crimes (sexual assault) amendment act 1981 (nsw) 1981 reforms included: common law immunity for rape in marriage abolished in statute, common law immunity for males under the age of 14 abolished in statute, definition of sexual intercourse broadened. Homosexual law reform: nsw 1984 under crimes (amendment) act 1984 (nsw) 1989 reforms: sexual assault: s 61i, penalties for sexual offences increased, consent addressed in s 61r (note: this section no longer exists, aggravated offences introduced: s 61j. 2007 reforms: substantial amendments to nsw sexual assault law commenced on 1 jan. 2008 as a result of the crimes amendment (consent sexual assault.
