Sex offences are generally very serious matters. Upon conviction of a sex charge not only is imprisonment likely but in most cases an order is automatically made for the offender to become a registered sex offender. This will result in a continuing obligation upon the offender to report to authorities, be subject to prohibitions on travel, and in some cases property confiscation. It then becomes difficult for the person to find employment and their life is never really the same again.
The law office of Andrew Williams has extensive experience handling all types of sex related charges under federal and state law. Types of offences that are commonly handled by this office include but are not limited to sexual penetration without consent, indecent assault, indecent dealing with a minor, incest, lewd acts in public, prostitution, loitering and solicitation, as well as accessing, distribution and possession of child pornography and child exploitation material.
We aim to ensure that each client fully comprehends the criminal law charge that they are facing. Below we look at the offence of sexual penetration without consent; a charge which is commonly prosecuted by the State Director of Public Prosecutions in District Court of Western Australia.
What does sexual penetration without consent mean and what are the prosecution required to prove?
The offence of rape is now defined as sexual penetration without consent. People generally think of rape as involving the introduction of a man’s penis into a woman’s vagina. However, sexual penetration in this context is much broader than this.
In order to prove the offence of sexual penetration without consent the prosecution is required to prove beyond reasonable doubt each of the following elements:
- That the accused is the offender. In other words the accused is the one who’s said to have done the things which constitute the offence.
- That the accused sexually penetrated the victim;
- That that sexual penetration took place without the victim’s consent.
In relation to the second element above sexual penetration in this context includes the penetration of any human body part or object into victim’s vagina or anus. It also includes acts of cunnilingus and fellatio. Ejaculation is not necessary for there to have been a sexual penetration. Nor is it necessary that the act was done for sexual gratification.
“Consent” means consent freely and voluntarily given. Consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means. A failure of a person to offer physical resistance does not of itself constitute consent.
The issue of consent is frequently the central issue in a trial. A person cannot have been taken to consent where that person is asleep or unconscious or where that person is so affected by alcohol or another drug as to be incapable of consenting. Nor can a person be taken to have consented in a situation where the person is mistaken about the identity of the other person involved.
Often an accused person in a trial involving sexual penetration without consent will defend the charge on the basis that they had an honest and reasonable but mistaken belief that the victim consented. Of course it is impossible to look inside an accused’s person’s mind at the time of the incident. The jury, in these circumstances will often need to look at what can be inferred from the surrounding circumstances such as the prior relationship between the parties (if there was one) or the way that the accused or the victim behaved prior to the sexual penetration taking place.
Once the accused in a trial has raised a defence that they had an honest and reasonable but mistaken belief that the complainant did consent, the onus of proof is placed on the prosecution to prove beyond reasonable doubt that the accused did not have an honest and reasonable but mistaken belief.
Defences to an offence of sexual penetration without consent:
In a case of sexual penetration without consent there are numerous potential defences available. These include but are not limited to the following:
- The victim is lying;
- The victim is mistaken as to the identity of the accused;
- There was actual consent;
- The accused honestly and reasonably but mistakenly believed that the victim consented;
- The defence of necessity.
How we can help
The criminal law office of Andrew Williams has extensive experience in handling criminal charges relating to matters of a sexual kind. At Andrew Williams you will receive the services of a passionate and experienced criminal lawyer with the determination to protect your interests, safeguard your reputation, and achieve the most positive outcome. All the evidence is scrutinised and considered carefully at Andrew Williams in an effort to discover and highlight the weaknesses of the prosecution case. In doing so no stone is left unturned. All consultations with Andrew Williams are strictly confidential and protected by legal professional privilege.
Sex related charges are serious matters and carry tough penalties upon conviction in our state. Have you recently been charged with a sex related offence? If so, contact the Law Offices of Andrew Williams today. You can reach us on (08) 9278 2575.