7.3.3A.1 - Charge: Assault with Intent to Commit a Sexual Offence

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I must now direct you about the crime of assault with intent to commit a sexual offence. To prove this crime, the prosecution must prove the following 4 elements beyond reasonable doubt.

One – The accused intentionally applied force to the complainant;

Two – The complainant did not consent to that application of force;

Three – At the time of applying force, the accused intended that the complainant would take part in a sexual act;

Four – The accused did not reasonably believe the complainant would consent to taking part in that sexual act.

I will now explain each of these elements in more detail.

Assault

The first element relates to what the accused did.

The prosecution must prove the accused intentionally applied force to the complainant.

For the purpose of this offence, force can be applied directly or indirectly to the complainant’s body, or to clothing or equipment the complainant was wearing.

It does not matter how much force was applied, or for how long. The prosecution do not need to prove that the application of force harmed the complainant. Even the slightest touch is enough.

[If relevant, add: The application of force can involve the application of heat, light or electric current to the complainant, or the application of any substance, including liquids or gases].

[If relevant, add: For this element, the prosecution does not need to show that NOC realised that NOA was applying force to [his/her] [body / clothing or equipment [he/she] was wearing].

[Refer to relevant evidence and arguments]

Absence of consent

The second element relates to the complainant’s state of mind.

The prosecution must prove that the complainant did not consent to the application of force.

Consent is a state of mind. The law says that consent means free agreement. So the prosecution must prove that NOC did not freely agree to the accused [identify relevant application of force].

[Where a party requests a direction about the meaning of consent, add one or more of the following shaded paragraphs]

The law says that a person can consent to an act only if they are capable of consenting, and free to choose whether or not to engage in or to allow the act.

The law says that where a person has given their consent to an act, they may withdraw that consent before the act happens or at any time while it is happening.

In this case, [insert evidence and competing arguments relevant to proof that the complainant was not consenting].

It is important that you remember that it is not for the accused to prove to you that the complainant consented. For this second element to be satisfied, the prosecution must prove to you, beyond reasonable doubt, that the complainant did not consent to the alleged assault.

[Refer to relevant evidence and arguments]

Intention to take part in a sexual act

The third element relates to the accused’s intentions.

The prosecution must prove that the accused assaulted the complainant with the intention that the complainant would take part in a sexual act. In other words, the prosecution must prove why the accused’s assaulted the complainant.

In this case, the prosecution argues that the accused intended to [identify alleged sexual act]. If you are satisfied beyond reasonable doubt that this is what NOA intended to do when s/he assaulted NOC, then you can find this element proved.[1]

[Refer to relevant evidence and arguments]

No reasonable belief complainant would consent

The fourth element relates to the accused’s state of mind about the complainant’s consent. The prosecution must prove beyond reasonable doubt that at the time of the assault the accused did not reasonably believe that the complainant would consent to the intended sexual act.

This fourth element will be met in any of the following circumstances [insert relevant section(s) from the following and apply to the evidence]:

• The accused believed that the complainant would not consent to the intended sexual act.

• The accused gave no thought to whether the complainant would consent to the intended sexual act.

• Even if the accused may have believed that the complainant would consent, this belief was not reasonable in the circumstances.

The prosecution only needs to prove one of these three states of mind. If the prosecution does not prove to you beyond reasonable doubt that NOA had any of these states of mind about whether the complainant would consent to the intended sexual act, then you must not find this element proven, and you must not find NOA guilty of this offence.

In this case, [evidence has been led / the defence argue] that at the time of the alleged assault NOA reasonably believed that NOC would consent to the intended sexual act. [Briefly summarise relevant prosecution and defence evidence and arguments].

[If a party requests a direction on the relevance of knowledge of a deemed non-consent circumstance under s34C(2), add the shaded section.]

If you find that [describe relevant Crimes Act 1958 section 34C(2) circumstance(s)], you must consider whether the accused knew or believed that [describe relevant Crimes Act 1958 section 34C(2) circumstance(s)]. If you find that NOA knew or believed that [describe relevant Crimes Act 1958 section 34C(2) circumstance(s)], that is enough to show that NOA did not reasonably believe that NOA would consent and you may find this element proved.

A belief will be reasonable if there are reasonable grounds for a person in the position of the accused to hold that belief. You must also consider all the circumstances when deciding whether a belief in consent was reasonable.

[Refer to competing prosecution and defence evidence and arguments on reasonable belief in consent]

In looking at the evidence, you should consider whether the accused took any steps to find out whether the complainant would consent and, if so, the nature of those steps. In this case [identify any evidence and/or competing arguments about the steps taken by the accused].

[If a party requests a direction about a belief in consent based on a general assumption about circumstances of consent – which must be identified by the prosecution- add the following shaded section]

The law says that a belief that a person would consent based only on stereotypes or preconceptions about the circumstances in which people consent to a sexual act is not a reasonable belief. It does not matter whether those stereotypes are based on any particular culture, religion or other influences.

If a belief in consent is based on a combination of matters including such general assumptions then, to the extent it is based on those general assumptions, it is not a reasonable belief.

In this case, the prosecution say that [identify relevant stereotype] is such a stereotype. If you consider that it is a stereotype, then it will not provide a basis for any belief that the complainant would consent to be a reasonable belief. [If necessary, refer to relevant prosecution and defence arguments on this issue].

You must decide the case on the evidence, and not on assumptions or stereotypes about the circumstances in which people consent to a sexual act.

[If a party requests a direction about the relevance of community expectations to whether a belief is reasonable, add the following shaded section.]

When you are considering whether a belief in consent is unreasonable, you must consider what the community would reasonably expect of the accused in the circumstances in forming a reasonable belief in consent. As members of the community, you have the best idea of what the community would reasonably expect of NOA in the circumstances in forming a reasonable belief in consent.

[If a party requests a direction about the accused’s personal attributes, characteristics or circumstances, add the following shaded section.]

In deciding whether the prosecution has proved that the accused did not have a reasonable belief in consent you may take into account any personal attributes or characteristics of the accused, or the circumstances of the accused. In this case, this would include [Identify relevant attributes, characteristics and circumstances].[2]

[If it is alleged that the accused was intoxicated at the relevant time, add the shaded section.]

If you find that NOA was intoxicated, you must not take this into account when assessing whether he/she reasonably believed that NOC would consent.

The law requires you to consider whether a belief that NOC would consent would have been reasonable for a person who was not intoxicated at the relevant time.[3]

Summary

To summarise, before you can find NOA guilty of assault with intent to commit a sexual offence, the prosecution must prove each of the following elements to you beyond reasonable doubt:

One – that NOA intentionally applied force to NOC;

Two – that NOC did not consent to that application of force;

Three – at the time of applying force, NOA intended that NOC would take part in a sexual act;

Four – NOA did not reasonably believe that NOC would consent to taking part in that sexual act.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of assault with intent to commit a sexual offence.

Notes

[1] If the prosecution has not provided sufficient particulars about the nature of the intended sexual act, or if it is necessary to direct the jury about the meaning of taking part in a sexual penetration, then the judge will need to direct the jury about the meaning of sexual penetration or sexual touching. See 7.3.2.1 – Charge: Rape (From 1/07/15) or 7.3.5.1 – Charge: Sexual Assault (From 1/7/15) for directions about sexual penetration or sexual touching, respectively.

[2] When a party seeks this direction Jury Directions Act 2015 s 47(4) specifies good reasons for not giving this direction. See 7.3.1.1 - Consent and Reasonable Belief in Consent (From 1/07/15) for guidance.

[3] This direction will need to be modified if the intoxication is not self-induced. See Jury Directions Act 2015 s 47(3)(b)(ii) and 8.5 - Statutory intoxication (From 1/11/14) for guidance.

Last updated: 21 July 2021

See Also

7.3.3A - Assault with intent to commit a sexual offence (From 1/7/15)