NSW Police Officers Face Court Over Allegations Of Sexual Assault

, NSW Police Officers Face Court Over Allegations Of Sexual Assault

NSW Police Officers Face Court Over Allegations Of Sexual Assault

The beauty of living in a country like Australia, where the rule of law (the time-honoured principle that everyone is subject to the same law, regardless of their status) is upheld and no one can hope to be able to get away with committing crime, just because of who or what they are and what they do. You can be the highest ranking Catholic church official, like the disgraced Cardinal George Pell, and still go to jail for committing a serious sexual offence. You can be a magistrate like Graeme Curran, and your position will not save you from the consequences of committing a similar offence.

THE STORIES

Recently, it was reported that a former NSW Police officer was before the Court and charged with sexual assault on a woman while on duty six years ago. Another reported incident is a newly graduated  member of the Police force who has been accused of engaging in an act of non-consensual sex with a woman and of groping another woman. The 22-year-old probationary constable was arrested following the allegations and was subsequently charged with sexual intercourse without consent and sexual touching. He has been granted bail and is due to appear before Downing Centre Local Court this month.

SEXUAL ASSAULT- THE LAW

According to section 61I of the Crimes Act 1900 (NSW) (the Act):

any person who has sexual intercourse with another person without the consent of that other person and who knows that the other person does not consent to the sexual intercourse is guilty of the offence of sexual assault”.

THE ELEMENTS OF THE OFFENCE

  1. The accused has sexual intercourse with another person;
  2. The accused has no consent of the other person; and
  3. The accused knows that they have no such consent or is reckless to the lack of consent.

WHAT MUST THE PROSECUTION PROVE?

The prosecution must prove that the complainant did not consent to the sexual intercourse. It must show that the complainant did not give their consent to the physical act of the accused, being aware that the act was one of a sexual nature. There is no requirement that the complainant appreciate that the act was either morally or criminally wrong.

The complainant is not considered to have consented to the act if they lack either capacity or opportunity to do so.

The complainant is not considered to have consented to the act if the alleged consent was obtained through unlawful detention or threats of force.

The complainant is not considered to have consented to the act if they allegedly consented because of a mistaken belief regarding the identity of the accused i.e. that the complainant is married to the accused or that the sexual intercourse is engaged in for medical or hygienic purposes.

WHAT CONSTITUTES CONSENT?

A person is considered to have consented to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.

THE MENTAL ELEMENT – IS ABSOLUTE CERTAINTY NECESSARY?

Absolute certainty as to whether the other person consents to a sexual intercourse is not necessary. It is enough that the accused is reckless as to whether the complainant consents or not, to satisfy the mental element of the offence (Murray v R (1987) 11 NSWLR 12). Certainty on the part of the accused is not necessary.

WHAT IS THE MAXIMUM PENALTY FOR SEXUAL ASSAULT?

The offence of sexual assault is a serious one and so, not surprisingly, the maximum penalty is quite severe. If the accused had sexual intercourse with another person without that person’s consent, knowing that that person does not consent to the sexual intercourse, they are liable to a maximum imprisonment for fourteen years.

WHAT IS SEXUAL TOUCHING?

Sexual touching is an offence under section 61KC of the Crimes Act 1900 (NSW). This offence was introduced in 2018 and replaced most of the older offence of Indecent Assault. There are some significant differences, one being that the new offence of sexual touching no longer requires proof of indecency and the maximum penalty for the offence is two years in the Local Court and five years imprisonment in the District Court.

WHAT MUST THE PROSECUTION PROVE?

To prove the offence, the prosecution must show beyond reasonable doubt that:

  • A person sexually touches another person or provokes someone else to;
  • There is no consent; and
  • The person knows the alleged victim does not consent.

To read our latest blog on this topic, click here.

To read more about the offence of sexual touching click here.

To find out more about other types of sexual offences click here.

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