Consent in Sexual Assault Cases – The Case of Donald Grant Ward
Sexual assault reports are at an all-time high in NSW, with statistics released on Thursday showing a 12 per cent increase in recorded victims in the last year. During 2017, 9847 victims went to police across the state – a rise from last year’s 8795 according to data released by the Australian Bureau of Statistics this week.
According to the same report, while reports of sexual assault have increased across the nation by eight per cent, NSW is both the state with the most victims of sexual assault per capita at 125.3 per 100,000 – an increase of almost 25 per cent since 2010 – and the location of the biggest increase in reports in the year-on-year comparison.
In Sydney, data from the NSW Bureau of Crime Statistics shows that Penrith, Westmead, Kings Langley, Camden and the Sydney CBD saw the biggest increase in reports of sexual assault in the year to 2017.
ABS Director of Crime and Justice Statistics William Milne confirmed that nearly 25,000 people were victims of sexual assault in Australia last year.
“This is the sixth consecutive annual increase in the number of victims recorded for this offence and the highest number recorded since the time series began in 2010,” he said.
SEX UNDER MISTAKEN BELIEF
In the state of Indiana (as in most states in the USA) using trickery, fraud, deception and even impersonation to get someone to have sex with you is not illegal. Take the case of an undercover officer who has an assumed identity who sleeps with a suspect. Perfectly legal in most United Sates.
However, in light of a recent case (The case of The State-v-Donald Grant Ward) there is now much heated debate as to why this peculiar, seemingly immunity protection law against what would otherwise be rape, holds credence in the USA whereas in almost every other Western Country the law would see such a culprit convicted and sentenced harshly.
THE STATE V DONALD GRANT WARD
The case of the State v Donald Ward is quite baffling. Essentially Donald Wards best friends’ girlfriend (a student from Indiana’s Purdue University College named Abigail Finney) thought she was in bed with her boyfriend in his dorm when she had sex with him. However, when she went to the bathroom she realised that the man she was actually in the bed with (and had intercourse with) was not her boyfriend but rather her boyfriend’s best friend Donald Grant Ward.
In Court Ward’s lawyers argued his actions could not be rape because the sexual act was technically “consented to”. The fact it was mistakenly consented to by Ms Finney did not override the law which in the US which states if the act of sex is consented to then the mistake as to other elements is not a crime. The Jury applying the odd Indiana law saw Ward acquitted.
For the full media article click here
USA VIS-À-VIS AUSTRALIAN LEGAL SYSTEMS
From inception the Legal systems of the USA and Australia are quite unique and dissimilar. This is because Australia has developed a common law system inherited from England whereas America has developed its own unique Legal System tracing back to after the War of Independence. For this reason, it is highly unusual for lawyers in Australia to argue American cases as precedents in Australian Courts (although sometimes some do try).
In this sense the law on trickery, impersonations, deceptions and fraud when it comes it come to eliciting consent for sex in NSW would one would hope to deliver a vastly different outcome.
THE LAW OF CONSENT IN NSW
Consent in NSW involves a conscious and voluntary agreement on the part of the complainant to engage in sexual intercourse with the accused.
Consent can be given verbally, or expressed by actions. Consent which is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily.
Consent is not freely given where a person knows that another person is consenting to sexual intercourse under a mistaken belief. When this occurs – the person, who knows about the mistaken belief is to be taken to know that the other person does not consent to the sexual intercourse.
A mistaken belief about the identity of the other person for example, or that the other person is married; or that the sexual intercourse is for medical or hygienic purposes— is taken not to be consent to the sexual intercourse. In addition, a person who submits to sexual intercourse with another person as a result of threats or terror is, by law, not to be regarded as consenting to the sexual intercourse
CONSENT AND KNOWLEDGE OF THE ACCUSED
Section 61HA(3)(c) Crimes Act (1900) NSW (The Act) requires the Crown to prove beyond reasonable doubt that there were “no reasonable grounds” for the accused to believe that the other person consented.
If the accused person genuinely, though wrongly, believed the complainant was consenting to intercourse then the prosecution has failed to prove that, at the time of intercourse, the accused did not genuinely believe that the complainant was consenting.
In such a case a verdict of “not guilty” must be returned.
IMPERSONATION, TRICKERY, DECEPTION OR FRAUD TO ELICIT SEX IN NSW
Invariably when a person who knows about the mistaken belief which leads to intercourse and proceeds anyway than that person is to be taken to know that the other person does not consent to the sexual intercourse.
If such a case as Wards case were to have occurred in the NSW Jurisdiction and tried in a NSW Court than the Jury would be open to return of a Guilty verdict. See section 61HA(5) Crimes Act NSW (1900)
IF YOU OR SOMEONE YOU KNOW ARE CHARGED WITH SEXUAL ASSAULT
National Criminal Lawyers only employ the best Criminal Lawyers Sydney has to offer. Moreover, we have been successful in having numerous sexual assault charges either withdrawn or having a Jury or Judge return a Not Guilty Verdict when one party has argued no consent.