It has been reported that a Catholic priest has been charged with nine offences involving sexual and indecent acts against five children aged between 12 and 15 when he was a band teacher, rugby coach and manager of a dormitory at a Southern Highlands boarding school in the 1980s.
Police arrested 77-year old Father Anthony Caruana at his Kensington home and charged him with sexual assault, indecent assault and committing an act of gross indecency on the complainants at Chevalier College, Burradoo between 1982 and 1988.
The arrest came as a result of Strike Force Caber, which was established in July 2018 to investigate allegations of child sexual abuse at the boarding house in the 1980s.
Caruana was granted conditional bail and is required to appears before Waverley Local Court on 22 May 2019.
Sexual Assault in New South Wales
It is where a person “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”.
What is sexual intercourse?
‘Sexual intercourse’ is defined by section 61H of the Act as:
“(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
(i) any part of the body of another person, or
(ii) any object manipulated by another person,
except where the penetration is carried out for proper medical purposes, or
(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
(c) cunnilingus, or
(d) the continuation of sexual intercourse…”
What is consent in sexual assault cases?
To establish a lack of consent, the prosecution must first prove the complainant did not consent.
It must then prove that the defendant knew the complainant did not consent.
This second requirement is established where the prosecution proves that the defendant:
- knew the complainant was not consenting, or
- was reckless as to whether the complainant was consenting, or
- had no reasonable grounds to believe the complainant was consenting.
In making such a finding, the court must have regard to all of the circumstances of the case including any steps taken by the defendant to ascertain whether the complainant was consenting, but it must not consider any self-induced intoxication by the defendant.
In addition to this, the law provides that a person cannot consent to sexual intercourse where he or she:
- does not have the capacity to consent due to their age or cognitive incapacity, or
- does not have the opportunity to consent as they are unconscious or asleep, or
- consents because of threats of force or terror, or
- is unlawfully detained.
It is important to note that a person under the age of 16 cannot provide consent, whether for sexual intercourse or another sexual or indecent act.
The law further provides that a person does not consent if under a mistaken belief that:
- he or she is married to the defendant, or
- that the sexual intercourse is for health or hygienic purposes.
The law also presently provides that the grounds on which it may be established that a complainant does not consent to sexual intercourse include where he or she:
- was substantially affected by drugs or alcohol,
- was subjected to intimidatory or coercive conduct, or another threat, that did not involve force,
- was taken advantage of through an abuse of authority or trust.
The law also makes it explicitly clear that a complainant who does not offer physical resistance is not necessarily consenting.
Indecent assault is an offence under section 61L of the Crimes Act 1900 (NSW) which comes with a maximum penalty five years’ imprisonment if tried in a higher court such as the District Court, or two years if the case remains in the Local Court.
To be found guilty, the prosecution is required to prove each of the following ‘elements’ beyond reasonable doubt:
- The defendant assaulted the complainant
In the context of the section, an assault is the deliberate and unlawful touching of another person. The slightest touch is sufficient to amount to an assault and it does not have to be a hostile or aggressive act or one that caused the complainant fear or pain.
- The assault was indecent
Indecent means contrary to the ordinary standards of respectable people in the community, and it must have a sexual connotation or overtone.
- The assault was committed without the complainant’s consent
Consent involves the conscious and voluntary permission by the complainant to the defendant to touch the complainant’s body in the manner that the defendant did.
Again, a person under the age of 16 years cannot provide consent.
Consent or the absence of consent can also be communicated by the words or acts of the complainant.
- The defendant knew the complainant was not consenting
The defendant must have known was not consenting. This is not a question of what a reasonable person would have realised, thought or believed, but what the defendant knew.