Can a Sexual Assault Offence be Considered Less Serious Where the Victim Has a Pre-Existing Relationship With the Offender?

The law basically says, that a pre-existing relationship between the offender and victim may reduce the level of criminality involved in a sexual assault offence. This can then result in a lighter punishment on the offender who commits the sexually assault.

The High Court Decisions in Australia have decided that in certain circumstances, not all circumstances, a prior relationship between the offender and victim of sexual assault is relevant to the objective seriousness of the offence. It can then have the effect of reducing the sentence on the offender.

Circumstances a Pre-Existing Relationship can Reduce the Criminality of Sexual Assault

The seriousness of the crime of sexual assault without consent can be seen as less serious where there is a pre-existing relationship between the victim and the offender.

These circumstances can include, where the victim ever offered consent, and then withdrew that consent, or where there was any confusion by the offender as to the victim’s consent.

The effect of this can be a much lighter sentence on the offender as the cases below demonstrate.

The Case of NM v R [2012] NSWCCA 215

This case is further authority on the law that a pre existing relationship between the victim and offender of sexual assault can reduce the level of seriousness involved.

In this case, the victim suffered significant pain from forced anal intercourse. The victim’s text messages indicated she suffered significant emotional trauma as a result of the sexual assaults.

Significantly, in that case, the Court found that the sexual assault without consent committed here was less serious for the following reasons:

  • There was a lengthy sexual relationship with the offender, with a sexual relationship that continued to exist at the time of the offences.
  • Her familiarity with the offender gave rise to finding that the offence was less serious than those involving sexual assaults by strangers, which would give rise to much more significant terror and fear in the victim’s mind.
  • The victim was prepared to have sexual intercourse with the offender until moments before.
  • The victim had in fact invited the offender to her home for the purposes of having sex.

The Case of R v Gerard Cortese [2013] NSWCCA

This case involved the offender, Mr. Cortese, who was initially sentenced for committing two sexual assaults on the same victim.

It is an example of a case where the pre-existing relationship between the offender and victim didn’t reduce the seriousness of the crime.

The Facts of the Case

The facts were agreed, and reduced into a document expressing what Mr. Cortese did to the victim.

This was following extensive negotiations between the prosecution and defence lawyers.

The victim was a 20 year old woman working at the Kings Court massage parlour, Broadway.

Mr. Cortese, 32 years of age, first met her at the end of May 2011 when he attended the massage parlour. They both commenced a relationship only a few weeks after that first meeting.

The relationship lasted for just over a month, when the victim told Mr. Cortese that she wanted to end the relationship.

Mr. Cortese wasn’t happy about this, and wouldn’t accept the relationship ending.

On Thursday 21 July 2011, in order to discuss their relationship, Mr. Cortese picked the victim up from her unit. He as he drove her back to his home in Drummoyne, they both argues about the relationship. He didn’t want it to end, and she did.

In those circumstances, Mr. Cortese threatened her, that if she ended their relationship, he would tell her family about her occupation in a massage parlour (which was something she had been hiding from her family), and that he will report her to Centrelink for not declaring all her earnings.

Once they reached his home in Drummoyne, they continued arguing.

During this time, he became physically aggressive and threatening, whilst trying to get physically close to her in his home.

The victim rejected each sexual advances made to her by Mr. Cortese.

He lent over to kiss her, when she moved away and said “no”. He then lent over and placed his right hand between her legs. He then started to rub her vagina on the outside of her pants.

The victim pushed his hands away from her, and said “no”. As Mr. Cortese continued, she became upset and said, “fuck off and don’t touch me”.

As Mr. Cortese continued to persist, she wanted to go home. He told her that she was staying the night.

The victim then walked into the bedroom, and naked, as she placed her mobile phone, wallet and clothes on a shelf in Mr. Cortese’ wardrobe. She then went to sleep crying.

The next morning, while she was under the bedsheets, they both continued arguing when the conversation quickly turned to a sexual nature.

During this argument, while the victim was recording the conversation with her ipod, Mr. Cortese said, “don’t make me rough you around, I’m going to get rough with you. I’ll rip your legs apart.. I’m going to hurt you”.

Mr. Cortese, while laying on his back, grabbed her and forced her on top of him.

As she said, “no”, he said, “we are going to have sex, I’m going to get rougher and rougher until I get it”.

He inserted two of his fingers inside her vagina, and said, “I’m going to rip it, put my dick in or I’m going to rip it off”.

While she continued to say, “stop”, he inserted his penis into her vagina and continued non-consensual sexual intercourse.

Mr. Cortese moved away after he was finished and they both fell asleep.

When they woke up, he told her to get out.

The victim got dressed, and Mr. Cortese drove her back to her home.

On the journey back, Mr. Cortese said to her, “that’s enough of what happened, I’m a good guy, things will be normal now.”

She said to him, “you can’t get away with this”. He replied, “nobody will believe you, you will be the one going to gaol.”

Significantly, during the whole of the relationship, including after the sexual assaults, the victim and Mr. Cortese continued to have consensual sexual activity “at a very high frequency”.

The victim reported the matters to police about a month later.

What Was He Charged With?

Mr. Cortese was charged and convicted of assaulting the victim and committing an act of indecency on her (under s 61L Crimes Act 1900 (NSW)) on 21 July 2011. This involved rubbing the victim’s vagina against her consent.

He was also charged with having sexual intercourse with the victim, without her consent, in circumstances of aggravation (under s 61J(1) Crimes Act 1900 (NSW)). The circumstances of aggravation here was that he deprived her of her liberty at the time of the sexual assault.

The sexual assault was the penetration of her vagina by his fingers and penis.

Did the Pre-Existing Relationship Between Them Reduce the Seriousness of the Sexual Assault Here?

The pre-existing relationship between Mr. Cortese and the victim here did not reduce the seriousness of the sexual assault. This is because, there was no initial consent or any confusion about consent at the time of the sexual assault.

The victim continued to say no and move away over a long period of time.

The Court also held that, “the mere fact that there was a pre-existing relationship between an offender and a victim does not mitigate the criminality involved.”

Penalties for Sexual Assault

The offence of indecent assault (s 61L Crimes Act), carries a maximum penalty of 5 years imprisonment.

The offence of sexual assault (s61I Crimes Act), carries a maximum penalty of up to 14 years imprisonment.

The offence of aggravated sexual assault (s61J Crimes Act), carries a maximum penalty of up to 20 years imprisonment.

The Result

He was initially sentenced by the District Court Judge to a 2 year term of imprisonment which was wholly suspended upon entering to be of good behaviour for the 2 years. He avoided full time prison.

He also initially received a section 9 good behaviour bond, which meant- he received convictions for both offences, yet avoided going to prison for both.

This decision was appealed by the Prosecution on the basis that it was too lenient.

The prosecution appeal was ultimately successful, where the court of criminal appeal in NSW, re-sentenced Mr. Cortese to a term of full time custody of 3 years, with a non-parole period of 18 months.

The seriousness of the sexual assault committed by Mr. Cortese perhaps would have been reduced, if there was evidence that at any point during the sexual assaults, the victim had ever offered consent, and then withdrawn it, or even, where there were any “perceptual difficulties” by Mr. Cortese as to her consent.

It’s a good idea to get advice from a sexual assault lawyer in Sydney if ever faced with these kinds of allegations by police. Sometimes these charges can be negotiated and dropped at an early stage which I have seen occur countless times in the past.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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