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Criminal Law - Sexual Assault

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Criminal Law - Sexual Assault
Sexual Assault
Patterns, context, definitions:

Law reform (’81)–
Importance of feminist contributions – significant to reform of law regarding rape.
Definitions:
Sexual assault (NSW)
Unlawful sexual penetration (Commonwealth Criminal Code)
Harm –
Affront to human dignity
Humiliating denial of freedom and equality; Cruel invasion of human privacy (FRASER 1975)
Sources of information –
Official statistics
Victim surveys
Discrepancy reveals under-reporting: 14% reported
Relationship between victim and offender – usually known to each other
Myths surrounding sexual violence –
Common sense myth: ‘no does not necessarily mean no’
Infused criminal justice process
Implication: discrepancy between woman’s statement regarding consent and male’s perception regarding it
Criminal Justice process –
Evidentiary and procedural matters: relevance of victim’s conduct, sexual experience and reputation
Impact on actus reus (victim’s actual consent/ non-consent) and mens rea (offender’s understanding of consent / non-consent)

*Issues: Actus Reus: did the victim actually consent and in what circumstances will it be accepted/rejected
Mens Rea: what was going on in the mind of D when engaging in act of sexual intercourse. Awareness of consent/or not? Test?

Criminal justice players: police, lawyers, judges, juries, broader education
Schooling young males in the norms of sexual civility
Communication between those engaging in sexual encounters

Sexual assault law reform:

Crime (Sexual Assault) Amendment Act 1981
Key change:
Term ‘rape’ abolished and replaced by sexual assault
Purpose: focus on issue of violence rather than issue of sexual act; importance of consent
Graduation of offences:
Category 1: inflicting gbh with intent to have sexual intercourse
Category 2: inflicting abh with intent to have sexual intercourse
Category 3: sexual intercourse without consent
Category 4: Indecent assault
Common law immunities abolished:
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