Sexual Assault[11.35]—[11.180]Crimes Act 1900 (NSW) Division 10 (Sexual Assault offences: ss 61I, 61J, 61JA)Amendment in 2008: Crimes Amendment (Consent-Sexual Assault Offences) Act 2007 (NSW).-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 polices 61I Sexual AssaultAny person who has sexual intercourse with another person without the consent of the other personand who knows that the other person does not consent to the sexual intercourseis liable to imprisonment for 14 years.AR-i) Meaning of sexual intercourses 61HA Meaning of “sexual intercourse”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,(b) sexual connection occasioned by the introduction of any part of the penis ofa person into the mouth of another person, or(c) cunnilingus (舔阴)(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).*Cunnilingus need not involve penetration and refers to oral stimulation of the female genitals with the mouth or tongue (BA v R NSWCCA)
-Who is capable of sexual assault/sexual intercourse?Sexual intercourse can be committed by any person upon any person: (s 61HA Meaning of Sexual Intercourse).-Minors are able to commit sexual assault too. s 80AC Offenders who are minors. NBL s 5 Children (Criminal Proceedings) Act 1987 (NSW): It shallbe presumed that no child who is under the age of 10 years can be guiltyof can offence.-‘Without the consent of the other person’In very rape trial, the prosecution must prove, as an ingredient of the offence that intercourse with another person occurred without consent. i) s 61HE(2) Meaning of “consent”A person consents to a sexual activity if the person freelyand voluntarily agrees to the sexual activity. *Meaning of ‘sexual activity’ provided in s 61HE(11): “Sexual activity” means sexual intercourse, sexual touching or a sexual act.*The use of the word “agree” reinforces that consent should be seen as a positive state of mind, and focuses the jury on the sexual autonomy and freedom of the complainant. - Mere acquiescence will not suffice. ii) Burden of proof of “Consent” (NSW) Criminal Trial Courts Bench BookThe prosecution has to prove BRD that V [the complainant] did not consent. D does not have to prove that V consented.NSW Bench Book: “Consent involves a conscious and voluntary agreement on the part of [the complainant] to engage in sexual intercourse with [the accused]. It can be given verbally, or expressed by actions. Similarly, absence of consentdoes not have to be in words;….other ways such as the offering of resistance although this is not necessary….Consent which is obtained after
persuasion is still consent provided that ultimately it is given freely and voluntarily.