LAWS1016 Lecture Notes - Lecture 10: Ultrasonic Transducer, Honda Mobilio, Cunnilingus
16 May 2018
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Class 10: Sexual Offences
Overview of sexual offences:
1. Sexual assault (s61I)
Aggravated version: s61J – aggravated sexual assault
S61JA – aggravated sexual assault in company
2. Indecent assault (s61L) (last class)
Aggravated version: s61M aggravated indecent assault
3. Acts of indecency (s61N) (last class)
Aggravated version: s61O aggravated acts of indecency
• All of tehse have complementary ‘attempt’ provisions under s61P, making it an offence to
attempt to commit an offence under s61I-s61O
• S61HA(1) provides that attempted sexual intercourse without consent is included
• Under s 61Q, if the aggravated assaults (J,M,O) the jury is not satisfied that the accused is
guilty of the offence, but is satisfied that the accused is guilty of the basic offences (I, L, N)
then they may find the person guilty of that offence
The s61I offence
• Conduct element: ‘sexual intercourse’
S61H definition
(1) For the purposes of this Division,
"sexual intercourse" means:
(a) sexual connection occasioned by the penetration to any extent of the genitalia
(including a surgically constructed vagina) of a female person or the anus of
any person by:
(i) any part of the body of another person, or
(ii) any object manipulated by another person,
except where the penetration is carried out for proper medical purposes, or
(b) sexual connection occasioned by the introduction of any part of the penis of
a personinto the mouth of another person, or
(c) cunnilingus, or
(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
[e.g. where consent was originally given but later retracted during the act]
• Conduct element: ‘without consent’ – s61HA
Positive definition of consent: s 61HA(2) – ‘freely or voluntarily agrees’
▪ Embodies an expectation that persons communicate and agree to
sexual intercourse
▪ Protection of sexual autonomy and freedom of choice of adults
(Model Crimianl Code, Chapter 5 Sexual Offences Against the
Person (1999))
▪ Positive communication model
▪ Consent is positive and negotiated, rather than presumed
▪ Have to take steps to determine if the person is consenting
A person who does not understand the nature of the sexual act cannot consent
to it: Flattery (1877)
Mistakes in s61HA(5)
▪ Generally, the broader context of consent is not taken into account -
it is more simply that Person A needs to consent to the act with
Person B
▪ Mobilio [1991] – Radiographer inserted ultrasound transducer into
vagina’s of numerous pateitns, not for medical purpsoes but for
sexual gratification – NOT GUILTY OF RAPE – cosnetn was still
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valid because patient’s mistake did not go to nature and character of
the act – they were only mistaken about the reason [OLD LAW]
S61HA(2) Meaning of consent A person
"consents" to sexual intercourse if the person freely and voluntarily agrees
to the sexual intercourse.
‘Automatically’ negate consent: S61HA(4) Negation of consent
A person does not consent to sexual intercourse:
(a) if the person does not have the capacity to consent to the sexual
intercourse, including because of age or cognitive incapacity,
[NOT EXCLUSIVE] or
(b) if the person does not have the opportunity to consent to the
sexual intercourse because the person is unconscious or asleep,
or
(c) if the person consents to the sexual intercourse because of
threats of force or terror (whether the threats are against, or the
terror is instilled in, that person or any other person), or
▪ ‘Threats and terror’ considered in Aitken [2005]
NSWCCA (before amendment of legislation)
▪ Terror – ‘sharp, overpowering fear’ or ‘feeling,
occasion or cause of great fear’
▪ ‘Threat’ suggests threats to physical safety
(d) if the person consents to the sexual intercourse because
the person is unlawfully detained.
‘Automatically’ negate consent: S61HA(5) A person who consents to sexual
intercourse with another person:
a) under a mistaken belief as to the identity of the other person, or
▪ Identity refers to thinking Person A is Person B, not
regarding characteristics of a person
▪ Therefore, if a person says they are a film star for
example, and the complainant consents to sexual
intercourse with them, this section DOES NOT protect
them. There is no sexual assault, no matter whether this
false belief was deliberately fostered by the other party
(p675 textbook)
b) under a mistaken belief that the other person is married to
the person, or
c) under a mistaken belief that the sexual intercourse is for health
or hygienic purposes (or under any other mistaken belief about
the nature of the act induced by fraudulent means),
does not consent to the sexual intercourse. For the purposes of subsection (3),
the other personknows that the person does not consent to sexual intercourse
if the other person knows the personconsents to sexual intercourse under such
a mistaken belief.
Matters that MAY negate consent depending on circumstances
S61HA(6) The grounds on which it may be established that a person does not
consent to sexual intercourse include:
a) if the person has sexual intercourse while substantially
intoxicated by alcohol or any drug, or (the victim is so
intoxicated they are incapable of giving consent)
b) if the person has sexual intercourse because of intimidatory or
coercive conduct, or other threat, that does not involve a threat
of force, or
▪ Aiken [2005] – victim observed shoplifting by accused,
who said he could help her. Accused made threat to
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find more resources at oneclass.com
inform security. Victim believed he was an undercover
security officer, followed him to the bathroom, where
he sexually assaulted her
Threat made was NON-VIOLENT – this is not
enough
Conviction quashed
c) if the person has sexual intercourse because of the abuse of a
position of authority or trust.
▪ Unlike s61HA(5), these do not operate automatically to
negate consent
▪ Broadens circumstances which may negate cosnent
▪ One of these factors may be relevant, but only to the
broader, general question of whether consent was present or
not
S61HA(7) 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.
▪ Just because someone does not physically resist, doesn’t mean that
person has consented (thought this can cause problems in terms of
evidence)
S61HA(8) This section does not limit the grounds on which it may be
established that a person does not consent to sexual intercourse.
▪ Non-exhaustive list of circumstances which negate consent
MENTAL STATE
S61HA(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.
For 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 personconsents to the sexual intercourse, but
▪ XHR v R [2012] NSWCCA
(e) not including any self-induced intoxication of the person.
▪ See Day v R [2017] NSWCCA 192 → accused thought person
he was having sex with was his girlfriend, as she had switched
beds with her friend… He was heavily intoxicated, which we
cannot take into account in determining if things are reasonable.
He also did nto take any steps to determine if the girl was
consenting.
• Mental state – generally
S61HA(3) applies to ss61I, 61J and 61JA, and NOT indecent assault or acts of
indecency offences, which are covered by common law
Under s61HA(3), ‘Knowledge’ is deemed as the followed
1. Actual knowledge of no consent
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Document Summary
Overview of sexual offences: sexual assault (s61i) Aggravated version: s61j aggravated sexual assault. S61ja aggravated sexual assault in company: indecent assault (s61l) (last class) Aggravated version: s61m aggravated indecent assault: acts of indecency (s61n) (last class) The s61i offence: conduct element: sexual intercourse". S61h definition (1) for the purposes of this division, [e. g. where consent was originally given but later retracted during the act: conduct element: without consent" s61ha. Person (1999): positive communication model, consent is positive and negotiated, rather than presumed, have to take steps to determine if the person is consenting. A person who does not understand the nature of the sexual act cannot consent to it: flattery (1877) Mistakes in s61ha(5: generally, the broader context of consent is not taken into account - it is more simply that person a needs to consent to the act with. consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
