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 imprisonment for 14 years.
In the case of R v MJR (2002) 54 NSWLR 368 AT , It was held that sexual assault has generally “come to be regarded as requiring increased sentences…by reason of a change of community attitudes”. It was explained that increased pattern of sentencing for child sexual abuse by reference to the greater understanding of the long-term psychological consequences for the victims and the considered judicial response to changing community attitudes to these crimes.
Maximum Penalties for Sexual Assault Offences
|Aggravated sexual assault- section 61J Crimes Act||Imprisonment of 20 years|
|Aggravated sexual assault in company – section 61JA Crimes Act||Imprisonment for life.|
|Assault with intent to have sexual intercourse – section 61K Crimes Act||Imprisonment of 20 years|
An important step for the courts when determining the appropriate sentence is to assess where the particular sexual assault offence lies on the spectrum or scale of seriousness.
Mahoney JA emphasised in the case of Ibbs v The Queen (1987) 163 CLR 447 that “each case is inherently serious; some are more serious than others. In some cases, the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances, of humiliation and otherwise, are much greater than are involved in some cases”.
Forms of sexual intercourse and objective seriousness
What Does “Sexual Intercourse” Mean
Sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus if any person by:
- Any part of the body of another person, or
- 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
Penetration of the lips is sufficient to amount to sexual intercourse.
Fellatio, Cunnilingus and Penile Penetration
It is the facts and the circumstances of each case, including the nature of the intercourse, that enables the proper evaluation of objective seriousness. While penile-vaginal penetration might be taken to be more serious than enforced fellatio, that does not mean that enforced fellatio falls somewhere below the mid-point of the objective seriousness.
Cunnilingus does not require proof of penetration and consists of licking or sucking of the genitalia.
In the case of R v PGM (2008) 187, the court held that it was open for the trial judge to find that the acts of cunnilingus were in general terms less serious than the penile penetration.
Digital and Penile Penetration
Digital penetration of the vagina constitutes sexual intercourse by definition. It need not be penile-vaginal penetration and can include penetration of the anus, fellatio or cunnilingus.
Digital penetration is generally less serious than an offence of penile penetration, however there is no canon of law which mandates a finding that digital penetration must be considered less serous than other non-consensual acts for sexual intercourse.
It was held by Justice Dunford that “the nature of the offences is further aggravated, in my view, by the degrading nature of the anal intercourse, even though this offence in any circumstances is of its nature always degrading”: R v Shortland  NSWCCA 34.
Meaning of “Consent”
A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity.
Sexual activity means- sexual intercourse, sexual touching or a sexual act.
Knowledge about Consent
A person who without the consent of the other person engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if:
- The person knows that the alleged victim does not consent to the sexual activity, or
- The person is reckless as to whether the alleged victim consents to the sexual activity, or
- The person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.
The trier fact must have regard to all the circumstances of the case:
- Including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but
- Not including any self-induced intoxication of the person.
Negation of Consent
A person does not consent to a sexual activity:
- If the person does not have the capacity to consent, including because of age or cognitive incapacity, or
- Does not have the opportunity to consent because the person is unconscious or asleep, or
- If the person consents to sexual activity because threats of force or terror, or
- If the person consents to sexual activity because the person is unlawfully detained, or
- If a person consents to the sexual activity because of a mistaken identity of the person
Meaning of “Cognitive Impairment”
A person has cognitive impairment if the person has:
- An intellectual disability, or
- A development disorder (including an autistic spectrum disorder), or
- A neurological disorder, or
- Dementia, or
- Severe mental illness or
- A brain injury
The objective seriousness of an offence depends on all the circumstances of the case and is not confined to the nature of the act committed by the offender. While the form of intercourse “is an important factor, it is not to be regarded as the sole consideration” R v Hibberd (2009) 194 A Crim R 1.
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