It is reported that a 43-year-old senior police officer was arrested and charged (https://www.smh.com.au/national/nsw/former-police-officer-charged-with-sexual-assault-while-on-duty-20190301-p5118q.html) on Wednesday 27 February this year for allegedly sexually assaulting a woman in Sydney.
It is alleged that between July and August of 2013, the senior constable officer was on duty at the time he allegedly sexually assaulted the women in a home.
While the 43-year-old man no longer remains employed in the police force, he was granted bail and required to appear at the Downing Centre Local Court.
Meanwhile, a former police officer from the Northern Territory has been charged with sexual assault (https://www.abc.net.au/news/2018-06-11/former-nt-police-officer-charged-with-rape/9855428) following an external enquiry into the NT’s police handling of an alleged scandal that an officer raped a colleague fourteen years ago.
Northern Territory Police Commissioner Reece Kershaw is reported to have written a memo to staff in November 2016, “there is concern that a member or member of the Northern Territory Police Force were aware for some years of the factual circumstances concerning the alleged improper conduct by one officer towards another officer.”
An independent investigation conducted by Dr. Gregory Lyon SC found “no evidence and basis upon which charges could be laid”. However, since then it is reported that Arthur Moses SC, President of the NSW Bar Association, has now uncovered significant developments prompting the NT Police to commence its own investigations into it.
People in a position of authority who commit crimes of sexual assault can expect to receive heavier penalties by the Courts. This is because the position of authority is considered as an aggravating factor in the sentencing process, warranting a heavier sentence than if there were no aggravating factors present.
Committing such a crime is even more horrifying to a victim who will feel powerless against a perpetrator who is in a position of authority.
On the night of 16 November 2018, it is alleged that a police officer from Denver, Colorado USA raped a woman (https://www.denverpost.com/2018/12/06/lakewood-police-charged-sexual-assault/) in the back seat of his police car after offering her a lift home.
It is reported that the woman was walking home from a bar when the officer approached her in his police vehicle, sirens on before offering her a lift. The alleged victim is reported saying, “the area of the 10th and Sheridan that I was in at the moment wasn’t a very good one to be walking around at night”.
It is alleged that he dropped her at a parking lot. But when she got out, he reportedly said, “You look like you want to kiss me.”.
The woman told police, “That’s when I knew I was in trouble.. I knew that things were going to get worse and if I didn’t do what I was told, he could hurt me.”
It is alleged that as he alighted from the vehicle, he approached her before kissing her and fondling her breasts.
He then reportedly requested for a condom after she said to him that he shouldn’t “do this”.
The alleged sexual assault then took place in the back seat of the patrol car before she ran away to a convenience store where she contacted her mother to pick her up.
The woman is reported saying, “I literally hate myself and I’m scared as hell to talk to the police about it”.
She described his cheeks as though they were “Storing nuts for the winter”.
The former police officer was arrested and interviewed.
He reportedly told police that she came onto kissing him first. While he initially resisted by pushing her away, he subsequently gave in when “his impulses got the best of him and he ended up having sex with her”.
Aggravated Sexual Assault Charges in NSW
An section 61J Crimes Act 1900 (NSW) (https://www.legislation.nsw.gov.au/#/view/act/1900/40/part3/div10/subDiv2/sec61j).
Because it is considered a ‘strictly indictable offence (https://www.criminaldefencelawyers.com.au/blog/the-difference-between-summary-indictable-strictly-indictable-offences/)’, it is a charge which must be dealt with to finality in the District Court, unless the prosecution withdraw the charge earlier in the case through negotiations.
The law considers it so serious that this offence is considered a ‘standard non-parole period’ offence (https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/appendix_a.html). This means that anyone guilty of committing this crime, who falls within the middle of the range of objective seriousness for this kind of offence, can face a standard 10-year non-parole period of imprisonment.
The non-parole period is the minimum period of jail a convicted offender will be required to spend behind bars before being eligible for release on parole back into the community.
The prescribed 10-years standard non-parole period for aggravated sexual assault offences is only used by courts as a guide. It is not a mandatory requirement to be imposed by courts when sentencing someone.
However, it is there to remind a Judge as to the extent of seriousness the offence is to be viewed by the community. The extent of seriousness it is viewed will be a factor considered by a Judge when determining an appropriate sentence to impose.
What is the Prosecution Required to Prove in Court for a Charge of Aggravated Sexual Assault?
Before you can be found guilty in court for aggravated sexual assault, the prosecution must prove each of the following elements of the crime beyond reasonable doubt in court:
- You had sexual intercourse with the alleged victim; and
- The alleged victim did not consent to the sexual intercourse; and
- You knew that the alleged victim didn’t consent to the sexual intercourse; and
- All this happened in ‘circumstances of aggravation’
If the prosecution is unable to prove even one of the above 4 elements in court, you will be found not guilty. This will result in the charge being dismissed, and you will be acquitted.
As to how the court determines whether you knew that the alleged victim didn’t consent to the sexual intercourse, is outlined in our previous blog on The Law on Whether the Accused Knew that there was No Consent (https://www.criminaldefencelawyers.com.au/blog/defences-and-penalties-for-sexual-assault-offences-in-nsw/).
‘Sexual intercourse’ includes genitalia penetration, penetration of the anus, introduction of the penis into another person’s mouth, oral stimulation of the genitals, and penetration of the lips, or sucking or licking of the genitalia.
‘Circumstances of aggravation’ under section 61J(s) Crimes Act 1900 (NSW) includes:
- Where the offender had a position of authority which the victim was under; or
- The victim is under 16-years old; or
- The offender was in the company of a person other than the victim at the time; or
- The victim has a serious physical disability, or cognitive impairment; or
- The offender deprived the victim of his/her liberty before or after the crime; or
- The offender broke and entered into the house or building with the intention of committing this crime or any other serious indictable offence; or
- Immediately before, during or after committing the offence, the offender threatens to cause really serious injury or wounding to the victim or any person present or nearby; or
- Immediately before, during or after committing the offence, the offender threatens to cause actual bodily harm to the victim or any person present or nearby with an offensive weapon or instrument; or
- Immediately before, during or after committing the offence, the offender intentionally or recklessly causes actual bodily harm to the victim or ay person present or nearby.
If a successful defence applies to this charge, you will be found not guilty.
In some cases, an experienced criminal defence lawyer can effectively negotiate to get the charge withdrawn early in the proceedings through sending a carefully draft ‘legal representations’ letter to the prosecution. This letter should be carefully drafting outlining all the main holes in the prosecution evidence without revealing to much of the defence case.
Some defences to the charge of aggravated sexual intercourse include:
- Where the accused held a reasonable belief that the alleged victim consented.
- Where the alleged victim did in fact consent. This can sometime be inferred from the circumstantial evidence, and through effective cross examination by an experience senior defence lawyer.
- Where there is no evidence of sexual intercourse. If the prosecution fail to prove beyond reasonable doubt that sexual intercourse occurred, then you will be acquitted. DNA evidence may provide some insight into this issue.
- Where the sexual intercourse occurred for medical purposes, by consent.
For any questions on sexual assault cases and trials, we are available 24/7 with criminal defences lawyers in Sydney (https://www.criminaldefencelawyers.com.au/about-us/offices/sydney/), Parramatta, Newcastle, Wollongong, Penrith and 4 other office locations around NSW.
Our experienced sexual assault lawyers provide a free first consultation to anyone charged.