Sexual Assault
Sexual Assault
Sexual assault occurs when a person is forced, coerced or tricked into sexual acts against their will or without their consent, or if a child or young person under 18 is exposed to sexual activities. Sexual assault is a crime. Sexual assault is not the victim's fault. Its impact on the individual, their friends, family and community cannot be underestimated.
The law has been reformed many times in order for better just outcomes. Under the law of Crimes Act 2000, there have been recent law reforms such as consent. Under Section 61HA(2) Meaning of consent:
A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
This statement is clear, however in the case of R v Mueller 2005, the victim had a disability so therefore there was no consent due to her disability. It is similar yet also different to the NSW Bench Book direction that “consent involves conscious and voluntary permission by the complainant to engage in sexual intercourse with the accused”.
Other reform of the law was Section 61HA (4) states that consent will be negated:
(a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or
(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep.
Dealing first with ss4(b), these provisions do not appear to describe circumstances where consent is given but then negated. Rather they are circumstances where there is no consent in the first instance and could be encompassed by the definition under s61HA (2).
Sub-section 4(a), on the other hand, does not reflect the position elsewhere. It is included, in our opinion, to counter the generality of s61HA(2) and to specifically include within the circumstances of negated consent a reference to the capacity of the victim to consent, inclusive of age and cognitive incapacity. It is unclear, however,
Sexual assault occurs when a person is forced, coerced or tricked into sexual acts against their will or without their consent, or if a child or young person under 18 is exposed to sexual activities. Sexual assault is a crime. Sexual assault is not the victim's fault. Its impact on the individual, their friends, family and community cannot be underestimated.
The law has been reformed many times in order for better just outcomes. Under the law of Crimes Act 2000, there have been recent law reforms such as consent. Under Section 61HA(2) Meaning of consent:
A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
This statement is clear, however in the case of R v Mueller 2005, the victim had a disability so therefore there was no consent due to her disability. It is similar yet also different to the NSW Bench Book direction that “consent involves conscious and voluntary permission by the complainant to engage in sexual intercourse with the accused”.
Other reform of the law was Section 61HA (4) states that consent will be negated:
(a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or
(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep.
Dealing first with ss4(b), these provisions do not appear to describe circumstances where consent is given but then negated. Rather they are circumstances where there is no consent in the first instance and could be encompassed by the definition under s61HA (2).
Sub-section 4(a), on the other hand, does not reflect the position elsewhere. It is included, in our opinion, to counter the generality of s61HA(2) and to specifically include within the circumstances of negated consent a reference to the capacity of the victim to consent, inclusive of age and cognitive incapacity. It is unclear, however,