LAWS1206 Lecture Notes - Lecture 13: Nsw Law Reports, Black Letter Law, Zoophilia
Week 9: Sexual Assault
* ss 61I, 61J and 61JA are examinable in the end of semester exam
sexual assault is a crime of basic intent
Monday, 1 May 2017
09:08
Overview
Rape Myths: Social, cultural and political influences
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’
Reforms
Reforms in 2007 and 2008
Pre-2008 different laws
Some early cases might be referring to old statutory provisions
2006 there were substantial review on NSW sexual assault provisions, led to
wide scale of reform
Political and social forces
Brown: issue of consent to assault, where 5 adult men committed masochistic
acts upon each other, assault charges were made, all parties were consenting. Appellant
argued there was consent, but injury like this cannot be considered as good reason.
Normal adult cannot consent to masochistic activities cannot be considered as
conducive to the welfare of society
find more resources at oneclass.com
find more resources at oneclass.com
Lawyers need to understand ‘black letter law’ (doctrinal concepts and
principles) but they cannot ignore the political and social forces that impact upon and
shape the development of the law.
Remember Brown’s case
Brown [1992] 2 WLR 441, Court of Appeal stated:
‘We agree with the trial judge that the satisfying of sadomaschistic libido does
not come within the category of good reason nor can the injuries be described as
merely transient and trifling.’
Brown [1993] 2 All ER 75, House of Lords 3:2
‘Sadomasochistic homosexual activity cannot be regarded as conducive to the
enhancement or enjoyment of family life or conducive to the welfare of society’
Lord Lowry
2013: man was acquitted on sexual harm because the woman consented
The law is not static and it shifts with me and dominant culture
Myths
Rape- the common law offence
Deeply entrenched in customs and values
Rape is the carnal knowledge of a woman forcibly and against her will (an act
taken place without consent)
Sir Matthew Hale (18th century)
Gendered
Force
Without Consent
1981: common law rape was abolished in NSW
Today, the legal term adopted is sexual assault
Law reform in NSW
70s: common law offence still in place , rape crisis began in the 70s , anti-rape
movement
Emergence of NSW rape crisis centre 1971, it was not government
action, activist, woman movement. A period of consciousness
At this time, required someone to confirm their account (victim )
198 reform 1: crime sexual assault amendment, rape became sexual assault
find more resources at oneclass.com
find more resources at oneclass.com
Sexual assault category 1 - inflicting GBH with intent to have sexual intercourse
Sexual assault category 2 - inflicting ABH with intent to have sexual intercourse
Sexual assault category 3 - sexual intercourse without consent
Sexual assault category 4 - indecent assault and act of indecency
To recognise crime of violence rather than the consent and nature of the act
Marital rape reform: common law immunity for rape in marriage
abolished in statue
The husband cannot be guilty of a rape committed by himself upon his lawful
wife, for by their mutual matrimonial consent and contract the wife hath given up
herself in this kind unto her husband, which she cannot retract’
Sir Matthew Hale: The common law doctrine of matrimonial consent
The History of the Pleas of the Crown (1736)
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: included penetration with object
and anal intercourse
The reforms did increase in police accepting those reports, and offenders
pleading guilty
The objectivity to deemphasise consent did not happen
1984 reform:
crime of buggery was repealed:
S 79. Whosoever commits the abominable crime of buggery, or bestiality,
with mankind, or with any animal, shall be liable to penal servitude for
fourteen years.
but new offences enacted dealing with sexual acts with males under the age of
18:
i. From 2003 onwards age of consent in NSW is 16 years of age for all
persons.
ii. From 1984: consent was 16 except homosexual acts where consent is
deemed to be 18
1989 reforms: these reforms gave the current provisions its current shape,
increase in penalties
i. Sexual assault: s 61I
ii. Penalties for sexual offences increased
i. Consent addressed in s 61R ( Note: this section no longer exists ),
now is 61H is the current law
i. Aggravated offences introduced: s 61J
find more resources at oneclass.com
find more resources at oneclass.com
