We recently published a blog looking at the law in NSW when it comes to getting sex by deception; which is where one person lies to another in order to engage in sexual relations with them.
A Victorian case now gives us further example of how fraud in sexual assault cases is dealt with by the courts.
The defendant was 29-year-old father-of-three Deepak Dhankar.
Mr Dhankar admitted to tricking a woman into having sex with him by creating a fake profile on a dating website with the picture of a muscular blond man that he named Jamie.
His goal was to be more desirable to women, and he thought that the striking profile would do the trick.
And indeed it did, when in 2012 he allured a woman online into agreeing to have kinky sex with him at her home.
The plan was that Dhankar would let himself into the woman’s home at night and walk into her bedroom, where she would be lying on the bed blindfolded, at which time he would have sex with her as part of submissive-dominant role play.
The arrangement had some initial success, but when the woman’s child called out to her, she removed the blindfold and noticed that ‘Jamie’ looked nothing like his photograph.
Dhankar quickly left the home and the woman called the police.
Dhankar blamed his actions on his own marital problems, claiming that he was looking for an escape and didn’t mean for anyone to get hurt.
He accepted responsibility and pleaded guilty to ‘procuring sex by fraud’ in the County Court.
But after the case became public, not only did Dhankar lose his reputation but also his job as a financial accountant.
The Presiding Judge pointed-out that Dhankar was well-aware of the importance of physical appearance when it came to procuring the victim.
But the Judge also questioned the wisdom of the woman’s actions – stating that those who participate in online dating should be extremely careful.
The Judge found that the woman was foolish to let a complete stranger into her home at night, especially when her child was there.
This case might not be what we usually associate with sexual assault, as there was no use of threats, coercion or force.
But sexual assault can take place even without any such conduct, and still leave lasting devastation.
Indeed, the woman in the present case said that she felt hurt and violated by Dhankar’s brazenly deceptive conduct.
But Dhankar did not go to prison for his crime – instead the Judge sentenced him to 200 hours of community service.
He must also attend a mental health and sexual offender program, but avoids being registered as a sex offender.
What does the law say?
Under section 57 of the Crimes Act 1958 (Victoria), “A person must not by fraudulent means procure a person to take part in an act of sexual penetration.”
The maximum penalty in that state for using fraud to procure sexual penetration is 5 years imprisonment, while the maximum for ‘rape’ is 25 years.
In NSW, section 61HA of the Crimes Act 1900 NSW outlines situations where there is deemed to be no lawful consent to sexual intercourse.
Subsection 61HA(5) says that a person does not consent to sexual intercourse if they are under a mistaken belief as to the identity of the other person, or if they mistakenly believe that they are married to the other person.
If a person has sexual intercourse without consent, they are guilty of ‘sexual assault’ which comes with a maximum penalty of 14 years imprisonment.
So in both Victoria and NSW there are potentially heavy penalties for tricking a person into believing you are someone else in order to have sexual intercourse with them