The Offence of Rape and Consent Laws in NSW Explained

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Poppy Morandin.

 

Christian Porter has taken mental health leave from his position as Attorney-General, following coming forward as the cabinet Minister accused of an historical rape.

Mr Porter has refused to step down, announcing at a recent press conference that: “If I stand down from my position as Attorney General because of an allegation about something that simply did not happen, then any person in Australia can lose their career, their job, their life’s work based on nothing more than an accusation that appears in print.”

“If that happens, anyone in public life is able to be removed simply by the printing of an allegation. Every child we raise can have their lives destroyed by online reporting of accusations alone.” he continued.

The allegations against Mr Porter came after a letter was forwarded to the Prime Minister Scott Morrison, opposition Labor leader in the Senate, Penny Wong, and the Greens senator Sarah Hanson-Young.

The letter detailed a complainant’s accusation that she had been anally raped in 1988 by a federal cabinet minister, before he begun working in parliament.

The woman was said to be 16 at the time. Porter would have been 18.

The letter urged Morrison to establish an independent investigation into the alleged sexual assault.

The woman at the centre of the alleged incident is now deceased, after taking her own life in June 2020.

Whilst NSW Police were investigating the incident, the woman never provided a formal statement, and officers were unable to complete the process before the alleged victim’s death.

The recent letter submitted to parliament members was promptly handed over to officers, however NSW Police decided not to proceed further stating: “Based on information provided to NSW Police, there is insufficient admissible evidence to proceed. As such, NSW Police Force has determined the matter is now closed.”

Sexual assault allegations have rocked federal politics for more than two weeks after former Liberal staffer Brittany Higgins said she was raped by a colleague in Parliament House.

Ms Higgins was working as a media adviser with the then-defence industry minister, Senator Reynolds.

She alleges that on 23 March, 2019, after workplace drinks, a male colleague offered to drop her home in a taxi.

Instead, however, it is alleged that she remembers entering an office and lying down.

She claims waking up half-dressed and ‘mid-rape’, before urging the accused repeatedly to stop.

Although Ms Higgins did speak with officers soon after the incident, she ultimately decided not to pursue a formal complaint at the time, out of fear of jeopardising her employment.

It has been uncovered that many members of Parliament were notified of the offence at the time.

Since then, Higgins has made a formal complaint with the police regarding the incident.

In a scathing letter to Prime Minister, the head of the Australian Federal Police, Commissioner Reece Kershaw warned that delay in reporting crimes could lead to an offender committing more crimes.

“Failure to report alleged criminal behaviour in this manner, or choosing to communicate or disseminate allegations via other means, such as through the media or third parties, risks prejudicing any subsequent police investigation.

“Any delay in reporting criminal conduct can result in the loss of key evidence, continuation of the offending and/or reoffending by the alleged perpetrator.” he explained.

The Offence of Rape and Consent Laws in NSW

Pursuant to section 61I of the Crimes Act 1900 (NSW), 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 a maximum penalty of 14 years in jail.

Sexual intercourse includes 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 any part of the body of another person,
  • any object manipulated by another person, (except where the penetration is carried out for proper medical purposes), or
  • sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or cunnilingus (orally stimulating a victim’s genitals).

If this is done in circumstances of aggravation, a maximum penalty of 20 years in jail is applicable, pursuant to section 61J of the Crimes Act 1900 (NSW).

Circumstances of aggravation include, where the accused, at the time of, or before or after, the commission of the offence:

  • intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or threatens to do so with a weapon, or
  • threatens to inflict grievous bodily harm or wounding on the alleged victim or any other person who is present or nearby.

Actual bodily harm entails an injury that need not be permanent, but more than merely transient or trifling (R v Donovan [1934] 2 KB 498).

Comparatively, grievous bodily harm is any ‘really serious injury’ (Kbayli [2017] NSWDC 197) and includes any permanent or serious disfiguring of the person, the destruction (other than during a medical procedure or lawful abortion) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and any serious disease pursuant to section 4(1) of the Crimes Act 1900 (NSW).

Furthermore, aggravating circumstances include situations in which:

  • the alleged offender is in the company of another person or persons,
  • the alleged victim is under the age of 16 years,
  • the alleged victim is under the authority of the alleged offender,
  • the alleged victim has a serious physical disability or cognitive impairment,
  • the alleged offender breaks and enters into a building with the intention of committing the offence or any other serious indictable offence, or
  • the alleged offender deprives the alleged victim of their liberty for a period before or after the commission of the offence.

Consent is now positively and expressly defined in section 61HE, as where a person “freely and voluntarily agrees to the sexual activity”.

A person will be deemed to know that the alleged victim did not consent to sexual activity including in circumstances where the person is reckless as to whether the alleged victim consents, or where the person has no reasonable grounds for believing that the alleged victim consents.

Courts will consider all the circumstances of the case including any steps taken by the person to ascertain whether the alleged victim consents, but not including any self-induced intoxication of the accused person.

A person cannot be deemed to consent to sexual activity in situations such as where the person does not have the capacity to consent to the sexual activity, including because of age or cognitive incapacity.

Furthermore, a person cannot be deemed to consent in situations where:

  • the person does not have the opportunity to consent to the sexual activity because they are unconscious or asleep,
  • the person consents to the sexual activity because of threats of force or terror, or
  • the person consents to the sexual activity because they are unlawfully detained.

Other situations include where the person is substantially intoxicated by alcohol or any drug, or if the person consents to the sexual activity because of an abuse of a position of authority or trust.

Pursuant to section 61HE(6), a person who consents to a sexual activity with or from another person under a ‘mistaken belief about the nature of the activity induced by fraudulent means’ will be deemed to not have consented to the sexual activity.

This includes situations in which there may be a mistaken belief regarding the identity of the other person, that the other person is married to the person, or that the sexual activity is for health or hygienic purposes.

The other person will be deemed to know that the person does not consent to the sexual activity if the other person knows the person consents to the sexual activity under such a mistaken belief.

A person who does not offer actual physical resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity.

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