Daniel tried to sexually assault the victim even though she had resisted

RUNNING HEAD: CRIMINAL LAW
Criminal Law

CRIMINAL LAW
Daniel’s potential liability
Daniel tried to sexually assault the victim even though she had resisted. His intentions were
evident that he did not think before that whether the victim approved with his actions or not. He
kept on forcing to victim to do as he says. The prosecution can establish their case by showing or
proving that the victim did not consented to wrongful deeds of the defendant. The victim was
indicating clear signs that she did not intended to participate in physical relationship and she said
that she is not that type of girl. Further victim became hysterical and began screaming “get of
me; leave me alone, I want to go home”. In response to this, Daniel started to shake victim
aggressively, shoved her hard up against a wall, choking her, and said, “I am sick of your type,
why bother coming around if you are so uptight”? The actions of Daniel clearly indicate his
intentions and due to this behavior of Daniel, victim became silent.
Sexual Assault
In the present scenario, Daniel tried to sexually assault the victim.
New South Wales (NSW):
As (New South Wales) - s 61I, Sexual Assault means1:
Any individual who does sexual intercourse with another individual without the another person’s
approval and who understands that the another individual does not submit to sexual intercourse is
responsible to incarceration for 14 years2.
For constituting a case under the provisions of sexual assault few elements are required to be
established by the prosecutor, which are as follows3:
I. Physical elements; (i) sexual intercourse, (ii) without consent
1 Crimes Act (CA) 1900 (NSW) s61HA
2 Simon Bronitt and Bernadette McSherry, Principles of criminal law (Lawbook Co, 3rd ed, 2010) 272.
3 Ibid 626
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CRIMINAL LAW
II. Fault elements; (i) Awareness that other person does not consent; (ii) thoughtlessness,
whether another person consents, (iii) no rational basis for considering the other
person consents.
Queensland (QLD):
A person is held responsible for the offence of sexual assault if he4
a) illicitly and offensively assaults other person, or
b) procures other person, without the persons approval
i) To perform an act of obscenity, or
ii) Witnessing an act of obscenity by an individual or some another person,
Whoever found liable under this act shall be punished with imprisonment of 10 years.
Consent in cases relating to sexual assault offences:
As per s 61hA(2)5, consent means if an individual liberally and willingly agrees to sexual
intercourse it is said to an individual consents to sexual intercourse. Here knowledge means and
includes thoughtlessness or where an individual has no rational ground to believe that the other
consented s61HA (3)6.
Physical Element- without consent:
Consent must be given free and voluntary7. As applying these sections of CA, victim did not
consented to sexual intercourse as she resisted. There were no physical elements present to
establish defense case. Ultimately, the question of whether Alice consented will be a matter of
fact for the jury.
In R v Olugboja8,it was stated by the court that the concept of approval by common law is its
normal meaning, taking into account all the actual circumstances and in particular, the events
leading up to the action and her response to them, showing its effect on her mind.
In law, there is a difference between unlawful coercion and consent obtained by fraud or threat.
4 Criminal Code QLD s348
5 Crimes Act 1900 (NSW) s61HA
6 Crimes Act 1900 (NSW) s61HA
7 (NSW s 61HA (2); QLD s 348)
8 (1982) QB 320
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CRIMINAL LAW
In case of DPP v Beard9, the court held that, It follows that not coercion, the use of stress will
not vitiate approval. It has been said that approval may be diffident, unwilling, resentful or upset,
but if it is deliberately allowed (provided its approval is not acquired through power, danger,
fear, or fraud) it is not sexual assault or rape.10
Conclusion
Alice’s evidence will be that she did not consent. It would be open to a jury to find out whether
the consent of Alice was not ‘freely and voluntarily given’ in NSW. As in the case of Lazarus v
R11, the main issue before the court was to determine whether, beyond reasonable doubt, it was
available to the jury to say that the offence components had been proven. Similarly, in the given
scenario it is a question of fact whether, the complainant gave the consent freely, is to be
determined by the jury.
Fault element in sexual assault:
To establish case, prosecution needs to corroborate beyond reasonable doubt that respondent
knows that the aggrieved did not gave approval. As per s 61HA (3)12, it can be established by
showing that the respondent;
a) Has the understanding that aggrieved does not gave approval, or
b) Is thoughtless as to whether the persons approves, or
c) Has no rational grounds of considering that the person approves.
Defendant’s efforts are important but not self-induced intoxication of defendant. To constitute
defendants fault, actual awareness or knowledge is material.13
Conclusion
9 (No.1) (1993)
10 Antonica Quadara, Bianca Fileborn and Debra Parkinson, The role of forensic medical evidence in the
prosecution of adult sexual assault (2013) Australian Institute of Family Studies
11 (2016) NSWCCA 52)
12 Crimes Act 1900 (NSW) s61HA
13 Thomas Crofts and Arlie Loughnan, Provocation, NSW style: Reform of the defence of provocation in NSW
(2014) 2014(2) Criminal Law Review, pp. 109-125
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