The Law, Penalties and Defences for Sexual Intercourse Without Consent

by Sonia Hickey & Ugur Nedim

For the past few years, Prince Andrew has been embroiled in allegations that he was a participant in a child sex trafficking network headed by the late American businessman Jeffrey Epstein.

US prosecutors have been pursuing the Prince for some time, seeking his co-operation as they aim to secure justice for the teenage girls who were procured by Mr Epstein.

Broadly, there are two investigations taking place – firstly, a criminal investigation by the FBI, and secondly, civil proceedings brought by lawyers who are seeking compensation against Mr Epstein’s estate; which is reported to be worth hundreds of millions of dollars.

Prince Andrew is not under a legal obligation to assist the FBI or the lawyers representing Mr Epstein’s accusers.

Formal request for cooperation

But frustrated by what it claims has been ‘zero voluntary cooperation’ by the Prince, the US Department of Justice has issued a formal request for “mutual legal assistance” (MLA) to the British Home Office, bypassing Buckingham Palace.

MLA requests are only used in criminal cases under a legal treaty with the UK and it’s understood that Andrew is required as a witness. He does not face any charges – but both the FBI and other interested parties are trying to establish whether he has material evidence that could assist them. They can also be used in civil cases, but rarely are.

If the MLA is granted, then US prosecutors have two options. The first, typically only used for witnesses to crimes, would see Prince Andrew asked to voluntarily attend an interview and give a signed statement. Crucially, this would not be under oath.

However, prosecutors also have the power to ask Prince Andrew to attend London’s City of Westminster Magistrates’ Court to provide oral or written evidence which would be under oath.

If he refuses, he can then be forced by summons with US prosecutors able to question him, but a summons can only be served if he returns to the US.

No diplomatic or sovereign immunity

Unlike the Queen, Prince Andrew does not hold foreign sovereign or diplomatic immunity from criminal prosecution.

But he could still retain his right under the Fifth Amendment in the US Constitution to stay silent to avoid self-incrimination.

Under  the US legal system,  if the Prince does decide to remain silent, US legal experts say that decision would not only impact on his already diminished reputation, but that “an adverse inference could be drawn against him in the related civil litigation, leading to a possible default judgment.”

Default judgments arise in circumstances whereby one party to a suit has failed to perform a court-ordered action, and subsequently that failure has not only prevented the issue from being presented before the court but also results in the court settling the legal dispute in favour of the compliant party.

Prince Andrew faces a string of allegations from several young women that he had sex with them while they were underage, there are also allegations involving sex orgies and prostitution. It’s understood that there are five accusers who want to give evidence about Andrew in US courts and that subpoenas have been prepared which could be served on Andrew if he ever sets foot in the US.

The Prince maintains his innocence

To date, Prince Andrew has steadfastly denied all of these accusations and in an interview with BBC television late last year, said that he did not witness or suspect any suspicious behaviour, and was completely unaware of Jeffrey Epstein’s criminal activities until Epstein was charged and convicted in 2018 of soliciting and procuring a minor for prostitution.

Prince Andrew became friends with Jeffrey Epstein in 1999, and it’s well documented that they met on several occasions and that Prince Andrew spent time at Epstein’s New York mansion. He also spent time at Epstein’s Palm Beach home and on a private island in the US Virgin Islands.

Epstein was arrested again in 2019, and committed suicide in his jail cell only weeks later, while awaiting trial on charges of sex trafficking.

In the wake of Epstein’s  death, no formal criminal charges could be laid against him, and despite the stories that have swirled around him for many years that involve procuring teen girls for sex parties involving his rich and famous friends, the women who say they were victims of trafficking and sexual abuse are still waiting for justice to be served.

Several high profile assault cases in the US in recent times, such as cases against Bill Cosby and Harvey Weinstein, which spawned the global #metoo movement, prosecutors in the US have wasted no time signalling a new era, one in which sex offences will be punished severely, particularly those which involve rich and powerful men who have the influence and dominance to silence their young vulnerable victims.

The offence of sexual intercourse without consent

Sexual intercourse without consent is an offence under section 61I of the Crimes Act 1900 (NSW) (‘the Act’) which carries a maximum penalty of 14 years’ imprisonment.

The offence is also known as ‘sexual assault’, and it occurs 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?

Section 61HE of the Act provides that a person consents to sexual activity if he or she freely and voluntarily agrees to it.

The section proceeds to state that an alleged offender knows there is no consent if he or she engages in sexual activity, or incites anyone to do so, in circumstances where he or she:

  • knows the alleged victim does not consent, or
  • is reckless as to whether the alleged victim consents, or
  • has no reasonable grounds to believe the alleged victim consents.

In deciding whether there is consent, the court must consider any steps taken by the alleged offender to ascertain whether there is consent.

The court cannot take into account any self-induced intoxication by the alleged offender.

The section makes clear there is no consent where the alleged victim:

  • does not have the capacity to consent due to their age; the age of consent in NSW is generally 16 years, or 18 years where the complainant is under the defendant’s ‘special care’, or
  • does not have the capacity to consent due to a lack of cognitive ability, or
  • does not have the opportunity to consent because they are unconscious or asleep, or
  • consents because of threats of force or terror, or
  • consents due to being unlawfully detained, or
  • consents because of a mistaken belief:

(a) as to the identity of the alleged offender,

(b) that the two are married,

(c) that the activity is for health or hygienic purposes, or

(d) that arises through any fraud.

The grounds upon which it may be established that the alleged victim did not consent include that he or she:

  • was substantially intoxicated,
  • was intimidated, coerced or threatened in any way, or
  • was under the authority or trust of the alleged offender.

The section further makes clear that a failure to resist the activity not in itself to be regarded as establishing consent.

What are the defences?

In addition to the requirement that the prosecution must prove each element of the relevant offence, it must also disprove beyond reasonable doubt any of the following defences if properly raised:

  • Duress, which is where you were threatened or coerced,
  • Necessity, where the act was necessary to avert danger, and
  • Self-defence, where you engaged in the act to defend yourself or another.

Charged with a sexual offence?

If you have been accused of a sexual offence and require the assistance of lawyers who are vastly experienced and have an outstanding track record of defending these cases, call Sydney Criminal Lawyers® 24/7 on (02) 9261 8881 to arrange a free first conference.

Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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