The laws around sexual assault in Australia are different in each state. This article explores the law in New South Wales.
It's not called rape
Although the term "rape" is widely used, it’s not a legal definition of the crime. The correct term is "sexual assault," as defined in the NSW Crimes Act. Under the act, "sexual assault" is penetrative assault and "indecent assault" is a sexual assault that is not penetrative. For the purposes of this article, we will use the words "rape" and "sexual assault" interchangeably.
Presumption of innocence
The law states that a person is innocent until proven guilty, and this is the starting point with cases of alleged sexual assault. For a person to be convicted, the prosecution must prove beyond a reasonable doubt that the accused person committed the crime (meaning it is not assumed the person is guilty and then they have to prove otherwise).
What needs to be proven?
Sexual assault is defined in the Crimes Act as: "Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse."
In other words, there are four elements that need to be established in court:
- A person has had sex
- The sex was with another person
- That person did not consent to the sex
- The first person knew the other did not consent to the sex
In court, the person alleging rape is called the "complainant" and the person accused of the rape is called the "defendant".
Who hears rape cases?
Sexual assault is what's known as a "strictly indictable offence," meaning it's so serious that it has to be heard by a judge and jury in either the District or Supreme Court. Defendants can apply to have their case heard by a judge only, but this is rare.
Juries are randomly selected and there is no requirement that they include a certain number of women or men. Although statistically unlikely, that means a rape case could be heard by a jury entirely made up of men.
Complainants almost always have to testify in court because because rape tends to occur in circumstances where there are no eye witnesses, so the evidence of the complainant will be crucial to the Crown's case. Defendants often testify as well, but it's not as common. When complainants are on the stand they are subject to cross-examination from lawyers representing the defendant. This process can last up to two days - although this is rare - and is widely accepted as being difficult and at times harrowing for the complainant.
But Andrew Tiedt, a senior associate with Armstrong Legal, says the cross-examination process is better today than it once was. "It was much worse in the bad old days when barristers would tear strips off complainants," he says. "That's been reined in a large amount by the judiciary and the legislature."
In recent years there have been a number of law changes to protect rape victims, including one that means their sexual history can't be raised in court. Lawyers can now only raise the sexual history of a complainant if the lawyer is given leave by a judge, and the bar for that is pretty high.
Mr Tiedt says complainants also have the option to apply to testify from a different room by video, to avoid coming into contact with the defendant.
Another common fear among victims of assault is that their character and reputation will be destroyed in court, and lawyers will imply that they were "asking for it."
Portraying a woman as promiscuous or flirtatious by drawing attention to their clothing on the night in question, for example, could give a jury the idea that they were likely to be looking for sex. But are lawyers allowed discuss in court what a complainant was wearing at the time of their alleged assault? Mr Tiedt says as a general rule, no.
"Only if it's relevant," he says. "The court would keep a barrister on a very short leash."
But he concedes there are other ways that these messages can be conveyed to a jury.
"If there's a photograph of a complainant up on a screen, who knows what a jury will take into account."
Consent is a hugely complicated area in the law around sexual assault, and many cases hinge on different versions of whether sex was consensual or not. A starting point in the Crimes Act is that consent must be freely and voluntarily given. Consent that is threatened out of someone does not count.
The trickiest part though is around the defendant's knowledge of consent and it can become a case of one word against another.
"If someone says they weren't consenting, it's really difficult to argue with that because their thoughts are their thoughts," Mr Tiedt says.
The criteria for determining whether the defendant knew there was no consent is outlined in the Crimes Act:
61HA (3): A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:
- (a) the person knows that the other person does not consent to the sexual intercourse, or
- (b) the person is reckless as to whether the other person consents to the sexual intercourse, or
- (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.
The issue of consent is further complicated if parties are intoxicated, mentally ill or are impaired in another way.
In a lot of sexual assault cases, defendants deny sexual contact took place at all. But despite what you may think, Mr Tiedt says DNA evidence is not always the best way to figure out whether it did or not. "The show CSI has wrecked people's understanding of DNA," he says. "People often just don't leave DNA."
A lack of DNA is not evidence that sexual contact didn't take place because some people are simply "poor shedders," meaning they shed less skin (and DNA) than others.
What does the jury consider?
Juries are ordinary people who are able to draw their own conclusions but they are given instruction by judges to consider evidence in a certain way.
"A judge would typically give a jury instruction to not believe or disbelieve someone based on how they gave evidence," Mr Tiedt says. "So you might be from a certain culture where when you're embarrassed you look down and shake your head. And some people could see that as reticence to give evidence but a judge will say, 'You shouldn't judge them on how they give evidence, you should judge them on their answers'."
Rape cases usually take about a year to be heard in court from the date of the alleged offence, but it can be longer.
After charges have been laid, police usually take out an AVO against the defendant to protect the complainant.
Bail conditions are often imposed as well, to ensure the defendant can't go into the same area that the complainant lives. While important, these protections can be easily breached.
Sentences for sexual assault can range from a good-behaviour bond or a suspended sentence to a full-time jail sentence. The maximum jail sentence for sexual assault in NSW is 14 years. The maximum penalty for aggravated sexual assault is life.
- Physical evidence: "It definitely isn't required."
- Whether people are more sympathetic if a complainant can show they fought back: "I don't think you as a complainant have a better chance of being believed if you do any one thing. It's a complete case-by-case thing depending on circumstances.
- Why people have negative perceptions about taking rape cases to court: "It's a deeply unpleasant experience for an alleged victim."
- Types of sexual offenders: "There's one extreme of the severely disabled person who barely knew what he was doing and the other extreme is the recidivist violent offender, and everything else in between.
- Is there such a thing as a strong case? "Sure. A good example is when the defendant tells police on a recorded interview, 'I've never seen her, we've never had sex,' and then his DNA is inside her. You've caught him out on a massive lie."
- Whether there is more video evidence today because of smartphones: "There is more but there's always been video cameras."
Readers seeking support can contact the Sexual Assault & Domestic Violence National Help Line on 1800 737 732 or Lifeline on 13 11 14