Sexual Offences Exam Notes

Overlap in Notes: Events are primarily defined by legislation; cases mainly reference older versions of offenses.
Recent Amendments: Changes to reasonable belief in consent and consent/absence of consent affect defense applications.
Checklist: Flag key considerations during analysis; tailor arguments based on relevance.
Justification: Link principles to outcomes.

Terminology: Distinguished from general sexual assault.
Actus Reus:
- Accused sexually penetrates victim.
- Victim did not consent.
Mens Rea:
- Accused intended to sexually penetrate victim.
- Accused did not reasonably believe victim consented.
Focus: Reasonable belief in consent is most challenging to apply.

Applies to inserting any part of the body or an object, partially or fully.
Originally required a penis; now includes any object or body part.
Example: Consent withdrawn after initial penetration; keeping the object inside satisfies the actus reus (E and F).

General Test: Jury decides if consent is satisfied based on facts and guiding principles.
Specific Circumstances: If present, the jury must find no consent.
Guiding Principles: Inform whether the definition of communicative consent is met.
Statutory Demand: If a deeming provision applies, it is not discretionary.
Definition of Consent: Free and voluntary agreement, communicated through words or conduct.

Non-Resistance: Lack of verbal or physical resistance does not automatically imply consent.
Subsection 3: A person hasn't really and voluntarily agreed to an act just because they've consented to a different act with the same person or the same act with the same person or that one of these circumstances was present on the facts.

Clarence case: Consent was effective even if the victim wasn't aware the accused had an STD.
Current NSW legislation doesn't explicitly address deception about STDs.
If deception about STDs is present, assess whether there was free and voluntary agreement despite the deception.

Link Card relates to representing the use of a condom.
Mobilio dealt with victim's belief about penetration being for medical purposes, now covered by deeming provisions.

Jury directions help ensure the law is correctly applied without prejudice.
Both prosecution and defense can request directions.
Key Sections:
- 6 Sub 1: Restates the test that consent is only effective if the victim is capable of consenting and agree to a free of choice that can be withdrawn at any time.
- 36AA: if there's another one that you should write at the top of your notes so you can mention it if you harass those circumstances.
Examples:
- Absence of physical injury is not evidence of consent.
- No normal response to nonconsensual sexual acts.
- Victim's sexual history is not indicative of consent in this instance.

Two Elements:
- Accused intended to sexually penetrate the victim.
- Accused did not reasonably believe the victim consented.
Intention: Usually straightforward unless penetration is accidental.
Reasonable Belief: Subjective and objective test:
- Did the accused genuinely believe there was consent?
- Was that belief reasonable?

First, establish if the accused had a subjective belief in consent.
Then, assess if that belief was reasonable.
Objective Test with Subjective Characteristics: Assess reasonableness based on a person with similar traits to the accused.
Orbison Case: Age, background, and intellectual functioning are relevant.
Values derived from culture or religion cannot be superimposed.
Intoxication: Self-induced intoxication is irrelevant; non-self-induced intoxication is relevant.
Effects of mental illness: Reasonableness of belief does not take into account the effects of mental illness.

Accused is deemed to have not had a reasonable belief if they did nothing to ascertain consent.
Qualification: This does not apply if the accused's mental illness or cognitive impairment prevented them from seeking consent.

If a deeming circumstance for lack of consent exists, the jury can infer the belief was unreasonable.
Jury must consider community expectations of the accused in the circumstances.
Personal attributes of the accused should be considered unless they did not affect perception or were subjective biases.
Belief in consent cannot be solely based on general assumptions about how people consent.

Section 39:
- In play if the act of stress is satisfied being that the accused caused the victim to either sexually penetrate the accused or themselves or another person or be sexually penetrated by another person.
Sexual Assault by Touching (Section 61H):
- Touching: Defined as any part of the body or with anything else that's important so if it's an object or through anything, including anything worn by the person doing the touching by the person to touch.
- Sexual Nature: Touching may be sexual due to the area of the body touched.
Sexual Assault by Compelling Touching (Section 61I):
- They compel or cause sexual touching rather than touch the victim themselves.
Sexual Assault with Threat of Serious Injury (Section 40):
- Requires definition of serious injury.
- Mens rea does not require intent or capability to carry out the threat, but intent that the victim believes the threat will be carried out.