Australia: NSW police officer charged with sexual assault

A 22-year old Sydney Police officer has been accused of raping one woman and groping another in separate incidents that are alleged to have occurred last year.

The probationary constable was arrested at Granville Police Station following an investigation by the Professional Standards Command (PSC) over alleged incidents in July and December 2018.

PSC is a unit within the NSW Police Force which, among other things, is responsible for setting standards for performance, conduct and integrity, and which investigates allegations of serious criminal conduct, corruption, and high-risk matters involving police officers.

The constable has been suspended without pay, charged with sexual assault and sexual touching and released on bail until his court date in Downing Centre Local Court on 19 September 2019.

NSW Police charged with criminal offences

The officer is just one of many charged with serious crimes.

According to figures released in December 2018, dozens of New South Wales police officers have been charged with offences ranging from reckless damage and common assault through to child sex offences since 2016.

Domestic violence-related charges have been laid against 17 officers in our state since February 2017 – ranging from stalking and intimidation, to assault occasioning bodily harm, choking, and sexual assault.

Sexual assault in NSW

Sexual intercourse without consent is also known as sexual assault. Sexual assault is an offence under section 61I of the Crimes Act 1900 (NSW) which carries a maximum penalty of 14 years' imprisonment.

It is defined as occurring when a person "has sexual intercourse with another person without the consent of the other person and knows that the other person does not consent to the sexual intercourse".

Definition of 'sexual intercourse'

'Sexual intercourse' is defined as:

"(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

(i) any part of the body of another person, or

(ii) any object manipulated by another person,

except where the penetration is carried out for proper medical purposes, or

(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or

(c) cunnilingus, or

(d) the continuation of sexual intercourse..."

What is consent?

Section 61HE of the Act provides that a person consents to sexual activity if he or she freely and voluntarily agrees to it.

The section proceeds to state that an alleged offender knows there is no consent if he or she engages in sexual activity, or incites anyone to do so, in circumstances where he or she:

  • knows the alleged victim does not consent, or
  • is reckless as to whether the alleged victim consents, or
  • has no reasonable grounds to believe the alleged victim consents.

In deciding whether there is consent, the court must consider any steps taken by the alleged offender to ascertain whether there is consent.

The court cannot take into account any self-induced intoxication by the alleged offender and this section of the crimes act also makes it very clear that there is no consent where the alleged victim:

  • does not have the capacity to consent due to factors such as their age (outlined above) or cognitive ability, or
  • does not have the opportunity to consent because they are unconscious or asleep, or
  • consents because of threats of force or terror, or
  • consents due to being unlawfully detained, or
  • consents because of a mistaken belief:

(a) as to the identity of the alleged offender,

(b) that the two are married,

(c) that the activity is for health or hygienic purposes, or

(d) that arises through any fraud.

The grounds upon which it may be established that the alleged victim did not consent include that he or she:

  • was substantially intoxicated,
  • was intimidated, coerced or threatened in any way, or
  • was under the authority or trust of the alleged offender.

The section further makes clear that a failure to resist the activity cannot be regarded as establishing consent.

Sexual touching in NSW

The offence of indecent assault was replaced in December last year by 'sexual touching', which is an offence under section 61KC of the Act.

The section provides that, "a person is guilty of sexual touching if he or she, without the consent of the alleged victim and knowing there is no consent, intentionally:

  • sexually touches the alleged victim, or
  • incites the alleged victim to sexually touch the alleged offender, or
  • incites a third person to sexually touch the alleged victim, or
  • incites the alleged victim to sexually touch a third person."

The offence generally carries a maximum penalty of up to 5 years imprisonment.

However, if the victim was between the age of 10-16 years, the penalty increases to 10-years imprisonment, or 16 years if the child was under 10.

What is sexual touching?

'Sexual touching' is defined as touching another person with any part of the body or with anything else, or through anything, including anything worn by either person, in circumstances where a reasonable person would consider it to be sexual.

Matters to be taken into account when deciding if an act is sexual include whether:

  • the area of the body touched or doing the touching is the person's genital area, anal area or – in the case of a female person, or a transgender or intersex person identifying as female – the person's breasts, or
  • the alleged offender's actions are for sexual arousal or sexual gratification, or
  • any other aspect of the touching, or the circumstances surrounding the touching, make it sexual.

It's important to note that touching is not considered sexual if it is done for genuine medical or hygienic purposes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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