Sexual Penetration Without Consent
The offence of rape is now defined as sexual penetration without consent. People generally think rape as sexual intercourse involving the introduction of a man’s penis into a woman’s vagina. However, the legal definition of sexual penetration 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 person who committed the act that constituted the offence;
- That the accused sexually penetrated the victim; and
- That sexual penetration took place without the victim’s consent.
In relation to the second element above sexual penetration includes the penetration of any human body part or object into the victim’s vagina or anus. It also includes acts of cunnilingus and fellatio. The prosecution need not prove that ejaculation occurred for there to have been a sexual penetration. Nor it is necessary for the prosecution to prove that the act was done for sexual gratification.
WHAT DOES "CONSENT" MEAN?
“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.
HONEST & REASONABLE BUT MISTAKEN BELIEF OF CONSENT
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 the 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 Andrew Williams Criminal Law Offices has extensive experience in handling criminal charges relating to sexual assault matters. At Andrew Williams, you will receive the services of a passionate and experienced criminal defence 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 by 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 Western Australia. Contact our office to speak about your matter as soon as possible on (08) 9278 2575.