Published by Geoff Harrison
Other Sources:
Criminal Trial Courts Bench Book: Sexual Intercourse Without Consent - after 1 June 2022
Criminal Trial Courts Bench Book: Sexual intercourse without consent — until 31 May 2022
Criminal Trial Courts Bench Book: Evidence given by alternative means
Law Reform Commission: Consent in Relation to Sexual Offences
Crimes Legislation Amendment: (Sexual Consent Reforms) Bill 2021 Second Reading Speech
Public Defenders Time Chart re Sexual Offences as at April 2020
Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021
Cases:
Benn v R [2023] NSWCCA 24 (multiple victims)
Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 (re under authority)
Extracted Legislation:
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.
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.
(2) In this section,
"circumstances of aggravation" means circumstances in which--
(a) at the time of, or immediately before or after, the commission of the offence, the accused person intentionally or recklessly inflicts actual bodily harm on the complainant or any other person who is present or nearby, or
(b) at the time of, or immediately before or after, the commission of the offence, the accused person threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument, or
(b1) at the time of, or immediately before or after, the commission of the offence, the accused person threatens to inflict grievous bodily harm or wounding on the complainant or any other person who is present or nearby, or
(c) the accused person is in the company of another person or persons, or
(d) the complainant is under the age of 16 years, or
(e) the complainant is (whether generally or at the time of the commission of the offence) under the authority of the accused person, or
(f) the complainant has a serious physical disability, or
(g) the complainant has a cognitive impairment, or
(h) the accused person breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
(i) the accused person deprives the complainant of his or her liberty for a period before or after the commission of the offence.
(3) In this section,
"building" has the same meaning as it does in Division 4 of Part 4.
61HA MEANING OF "SEXUAL INTERCOURSE"
(1) For the purposes of this Division,
"sexual intercourse" means--
(a) the penetration to any extent of the genitalia or anus of a person by--
(i) any part of the body of another person, or
(ii) any object manipulated by another person, or
(b) the introduction of any part of the genitalia of a person into the mouth of another person, or
(c) the application of the mouth or tongue to the female genitalia, or
(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
(2) Penetration carried out solely for proper medical or hygienic purposes is not
"sexual intercourse" for the purposes of this Division.
61HI CONSENT GENERALLY
(1) A person
"consents" to a sexual activity if, at the time of the sexual activity, the person freely and voluntarily agrees to the sexual activity.
(2) A person may, by words or conduct, withdraw consent to a sexual activity at any time.
(3) Sexual activity that occurs after consent has been withdrawn occurs without consent.
(4) A person who does not offer physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity.
(5) A person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity.
Example--: A person who consents to a sexual activity using a condom is not, by reason only of that fact, to be taken to consent to a sexual activity without using a condom.
(6) A person who consents to a sexual activity with a person on one occasion is not, by reason only of that fact, to be taken to consent to a sexual activity with--
(a) that person on another occasion, or
(b) another person on that or another occasion.
61HJ CIRCUMSTANCES IN WHICH THERE IS NO CONSENT
(1) A person does not consent to a sexual activity if--
(a) the person does not say or do anything to communicate consent, or
(b) the person does not have the capacity to consent to the sexual activity, or
(c) the person is so affected by alcohol or another drug as to be incapable of consenting to the sexual activity, or
(d) the person is unconscious or asleep, or
(e) the person participates in the sexual activity because of force, fear of force or fear of serious harm of any kind to the person, another person, an animal or property, regardless of--
(i) when the force or the conduct giving rise to the fear occurs, or
(ii) whether it occurs as a single instance or as part of an ongoing pattern, or
(f) the person participates in the sexual activity because of coercion, blackmail or intimidation, regardless of--
(i) when the coercion, blackmail or intimidation occurs, or
(ii) whether it occurs as a single instance or as part of an ongoing pattern, or
(g) the person participates in the sexual activity because the person or another person is unlawfully detained, or
(h) the person participates in the sexual activity because the person is overborne by the abuse of a relationship of authority, trust or dependence, or
(i) the person participates in the sexual activity because the person is mistaken about--
(i) the nature of the sexual activity, or
(ii) the purpose of the sexual activity, including about whether the sexual activity is for health, hygienic or cosmetic purposes, or
(j) the person participates in the sexual activity with another person because the person is mistaken--
(i) about the identity of the other person, or
(ii) that the person is married to the other person, or
(k) the person participates in the sexual activity because of a fraudulent inducement.
(2) This section does not limit the grounds on which it may be established that a person does not consent to a sexual activity.
(3) In this section--
"fraudulent inducement" does not include a misrepresentation about a person's income, wealth or feelings.
61HK KNOWLEDGE ABOUT CONSENT
(1) A person (the "accused person" ) is taken to know that another person does not consent to a sexual activity if--
(a) the accused person actually knows the other person does not consent to the sexual activity, or
(b) the accused person is reckless as to whether the other person consents to the sexual activity, or
(c) any belief that the accused person has, or may have, that the other person consents to the sexual activity is not reasonable in the circumstances.
(2) Without limiting subsection (1)(c), a belief that the other person consents to sexual activity is not reasonable if the accused person did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consents to the sexual activity.
(3) Subsection (2) does not apply if the accused person shows that--
(a) the accused person had at the time of the sexual activity--
(i) a cognitive impairment within the meaning of section 23A(8) and (9), or
(ii) a mental health impairment, and
(b) the impairment was a substantial cause of the accused person not saying or doing anything.
(4) The onus of establishing a matter referred to in subsection (3) lies with the accused person on the balance of probabilities.
(5) For the purposes of making any finding under this section, the trier of fact--
(a) must consider all the circumstances of the case, including what, if anything, the accused person said or did, and
(b) must not consider any self-induced intoxication of the accused person.
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