Law, Penalties & Defences for Sexual Assault Rape Charges in NSW

 

It is reported that a former TV newsman Noriyuki Yamaguchi allegedly sexually assaulted freelance journalist Shiori Ito who has been awarded about $44,000 in damages for physical & psychological pain.

Yamaguchi was ordered by the Tokyo District Court to pay Ito a sum of 3.3 million yen representing the psychological and physical pain caused from the sexual assault. The 3.3 million yen converts to around $44,000.

The rape allegations Ito made has been a high-profile case. The alleged offender Yamaguchi is known to have a close connection with the Prime Minister, Shinzo Abe and his conservative supporters.

Yamaguchi has always denied the claims of rape, claiming that it was consensual sex between him and Ito.

As Ito commenced civil proceedings to sue Yamaguchi in 2017, she initially demanded 11 million yen (around $147K) in damages for her suffering. In addition, she also demanded an explanation for why, first he was not arrested and second, why prosecutors withdrew the criminal proceedings against Yamaguchi.

Subsequent to Ito filing civil proceedings against Yamaguchi, he then filed a counter claim against her, claiming she pay him 130 million Yen (around $1.74 million) for allegedly causing damage to his reputation after publicly accusing of being a rapist.

His counter claim was dismissed in court.

The Court recognised that Ito tried to discover the truth, to discover how it was handled, and to build awareness about the social & legal issues around sexual assault victims. The court acknowledged that this was all based on her intention to serve the public interest and doesn’t amount to defamation against Yamaguchi.

Ito’s victory reflects victory for women’s rights in Japan, and helps promote the #MeToo movement.

 

The Sexual Assault Rape Allegation

Ito claimed that on 4 April 2015 Yamaguchi allegedly raped her in his hotel room after she had passed out in a restroom. She says that he raped her while she was unconscious and he continued to do this even after she woke up and asked him to stop.

The next day, she attended a women’s clinic where she received treatment.

Then she went to police to complain, but unfortunately after taking weeks for an investigation to commence, prosecutors dropped it without providing an explanation.

She requested a court-appointed citizens’ panel to conduct a review of the decision of police to drop the case. Unfortunately, the panel upheld the decision not to prosecute Yamaguchi.

Law, Penalties & Defences for Sexual Assault Rape Charges in NSW

In NSW it is prohibited to have sexual intercourse with another person without consent, knowing that there is no consent.

Section 61I Crimes Act 1900 (NSW) prescribes a heavy maximum penalty of up to 14-years jail for this crime.

S61I is a strictly indictable offence, which means the court proceedings in NSW commence in the Local Court, but finalised for sentence or trial in the District Court-being a higher court.

The maximum 14-years jail sentence for rape also carries a 7-years standard non-parole period.

What this means, is that this offence attracts a minimum of 7-years full-time jail before being eligible for release on a parole period if the offence is assessed by the court to fall in the middle of the range of objective seriousness for offences of this kind.

The 7-years standard non-parole period for sexual intercourse without consent is not mandatory for Courts to impose. It’s merely used as a guide to help the sentencing Judge to come to a fair sentence penalty.

To be guilty of sexual intercourse without consent in NSW, the prosecution if required to first prove each of the following:

  1. Sexual intercourse took place between the accused and complainant; and
  2. The complainant didn’t consent; and
  3. The accused knew that the complainant didn’t consent.

Sexual intercourse includes sexual penetration. Examples include penetration of the anus, introducing the penis into another person’s mouth, oral stimulation of the other person’s genitals, penetrating the lips or licking/sucking another person’s genitals.

Generally, the legal age to have sexual intercourse in NSW is 16 or above.

Some defences to sexual intercourse without consent charges include:

  1. If the alleged offender believed the complainant was consenting, provided such a belief is held on reasonable grounds.
  2. Medical or hygienic purpose.
  3. Where any of the elements of the charge of sexual assault without consent is unable to be proven beyond reasonable doubt.

Have a question on the rape laws in NSW? Call our friendly team to arrange a free consultation with one of our criminal lawyers from Parramatta or Sydney CBD.

About Jimmy Singh

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

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