Even before he became a New South Wales police officer in 2011, Vaughan Mark Hildebrand had developed a scheme to blackmail women into having sexual intercourse with him.
His employment as an officer of the law merely gave him the authority and power he craved to better execute it.
The now 44-year old pleaded guilty in Downing Centre District Court to 44 offences involving 15 women over a decade, including blackmail and sexual assault.
During the sentencing hearing, the court heard that whilst a police officer, Hildebrand used social media to demand explicit images from women by using various threats against them.
Many of the women complied for fear of the officer using his position of authority to cause them harm.
The officer then threatened several of his victims that he would share the images to their partners, family members, colleagues and/or friends if they refused to have sexual intercourse with him.
Four of the women complied.
The Crown prosecutor submitted the officer’s scheme involved “very high levels of deception”,
“This is a case… of elaborate planning and deception by the offender in relation to all of his victims, motivated by a need for sexual gratification” he told the court.
The case has been adjourned for judgement.
Consent in sexual assault cases
Mr Hildebrand’s guilt in respect of sexual assault is based upon a lack of consent.
In that regard, section 61HE of the Crimes Act provides that consent is considered to have been given in the context of sexual assault cases where a person “freely and voluntarily agrees to the sexual intercourse.”
The first requirement to establish a lack of consent is that the complainant did not consent.
The second is 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 current 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.
Furthermore, the current law 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.
The offence of blackmail in NSW
Section 249K of the Crimes Act sets down a maximum penalty of 10 years in prison for the crime of blackmail, which is where a person makes any unwarranted demand with menaces with the intention of:
- obtaining a gain or causing a loss, or
- influencing the exercise of a public duty.
The maximum increases to 14 years where the person threatens to commit a serious indictable offence, which is any offence that carries a maximum penalty of at least five years’ imprisonment.
Examples of serious indictable offences include larceny (stealing), assault occasioning actual bodily harm, robbery etc.
Section 249L explains that a demand with menaces is ‘unwarranted’ unless unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of the menaces is a proper means of reinforcing the demand.
‘Menaces’ is defined by section 249M to include:
- an express or implied threat of any action detrimental or unpleasant to another person, and
- a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office.
The section makes clear that a threat against an individual does not constitute a menace unless it would cause:
- an individual of normal stability and courage to act unwillingly in response to the threat, or
- the particular individual to act unwillingly in response to the threat and the person who makes the threat is aware of the vulnerability of the particular individual to the threat.
Further, a threat against a Government or body corporate does not constitute a menace unless it would:
- ordinarily cause an unwilling response, or
- cause an unwilling response because of a particular vulnerability of which the person making the threat is aware.
In any event, it is immaterial whether the menaces relate to action to be taken by the person making the demand.
Section 249N defines the terms ‘gain’, ‘obtaining a gain’, ‘loss’ and ‘causing a loss’.
A ‘gain’ is defined as any gain in money or other property, whether temporary or permanent, and includes keeping what one has.
‘obtaining a gain’ includes obtaining a gain for oneself or for another person.
A loss is a loss in money or other property, whether temporary or permanent, and includes not getting what one might get.
‘causing a loss’ includes causing a loss to another person.
And finally, section 249O defines ‘public duty’ as a power, authority, duty or function:
- that is conferred on a person as the holder of a public office, or
- that a person holds himself or herself out as having as the holder of a public office.
Recording or distributing intimate images
The Crimes Amendment (Intimate Images) Act of 2017 was passed in response to the perceived inadequacy of protections against distributing intimate images, also known as ‘revenge porn’.
The Act inserted the following offences into the Crimes Act:
- Recording an intimate image without consent – section 91P,
- Distributing an intimate image without consent – section 91Q,
- Threatening to record an intimate image without consent – section 91R(1), and
- Threatening to distribute an intimate image without consent – section 91R(2).
The maximum penalties for each of those offences is 3 years in prison and/or $11,000 fine
An ‘intimate image’ is defined by section 91N as:
- an image of a person’s private parts, or of a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy, or
- an image that has been altered to appear to show a person’s private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy.
The same section defines ‘private parts’ as:
- a person’s genital area or anal area, whether bare or covered by underwear, or
- the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.
It defines a ‘engaged in a private act’ as:
- in a state of undress, or
- using the toilet, showering or bathing, or
- engaged in a sexual act of a kind not ordinarily done in public, or
- engaged in any other like activity.
Required ‘Mens rea’ (or mental state)
The required mental state for offences under section 91P and 91Q is that the defendant intended to record or distribute the images, or was reckless in that regard.
The required state for section 91R is that the defendant intended to cause the other person to fear that the threat would be carried out, and it is irrelevant whether the image actually existed.
Section 91T provides that an offence under section 91P or 91Q does not occur where:
- the conduct was for a genuine medical or scientific purpose, or
- the conduct was by a law enforcement officer for a genuine law enforcement purpose, or
- the conduct was required by a court or otherwise reasonably necessary to be done for the purpose of legal proceedings, or
- a reasonable person would consider the conduct acceptable, having regard to each of the following (to the extent relevant) the nature and content of the image, the circumstances surrounding the act, the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted, the degree to which the actions affect the privacy of the person depicted, and the relationship between the complainant and defendant.
Section 91S of the Act empowers a court to order a person who is found guilty under section 91P or 91Q to take reasonable steps to remove, retract, recover, delete or destroy any intimate image recorded or distributed.
The maximum penalty for a failure to comply is 2 years in prison and/or a fine of $5,500.