The Offence of Sexual Intercourse Without Consent in New South Wales

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The Offence of Sexual Intercourse Without Consent in New South Wales

A Sydney pharmacist convicted of sexually assaulting a teenager who was seeking the ‘morning-after pill’ has had his pharmaceutical licence revoked.

Mr Hany Ibrahim pleaded guilty to one count of sexual intercourse without consent in the NSW District Court last year and sentenced to two years in prison, with a non-parole period of nine months.

During the trial, the District Court heard that the incident occured in 2019 when the 19-year old woman visited the Mascot pharmacy Mr Ibrahim was working in.

Mr Ibrahim invited her into a small office to talk about medication, under the guise of privacy, and after a few questions he told the young woman he could “check” if her partner had “finished”.

He then assaulted her by digital (finger) penetration for about 2 minutes. When the young woman became uncomfortable with his purported ‘examination’ Mr Ibrahim told her to keep the incident quiet.

In the District Court proceedings, his Honour Judge Williams SC remarked: “This involved a gross breach of trust on a vulnerable young woman, who was entitled to assume that a pharmacist could not act to her detriment when dealing with a particularly sensitive topic.”

Licence revoked

The Health Care Complaints Commission (HCCC) deals with inquiries and complaints about all health services and providers in NSW, including, public and private hospitals, medical centres, registered health practitioners, such as medical practitioners, nurses, dentists and pharmacists, and also counsellors, speech therapists, massage therapists and alternative health care providers.

The body agreed with the District Court judge that Mr Ibrahim’s conduct amounted to a “serious” sexual assault and represented an “egregious breach of trust”.

The HCCC was also concerned that Mr Ibrahim failed to notify the regulation agency of the charges laid against him by police within seven days, as required by the law.

The Commission has the power to prosecute a complaint against a registered health practitioner before the Occupational Division of the NSW Civil and Administrative Tribunal (NCAT).

Earlier this week, the body revoked Mr Ibrahim’s registration as a health care practitioner.

He is prohibited from requesting a review of the cancellation order for two years.

He was also ordered to pay the HCCC’s costs of the investigation.

The offence of sexual intercourse without consent in New South Wales

Sexual intercourse without consent is also known in New South Wales as ‘sexual assault’.

It is an offence under section 61i of the Crimes Act 1900, which carries a maximum penalty of 14 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You had sexual intercourse with another person,
  2. Without the consent of the other person,
  3. Knowing the other person did not consent, or being reckless as to whether the other person consented, or having no reasonable grounds to believe the other person consented,

You must be found not guilty if the prosecution is unable to establish all three of those ‘elements’.

What is sexual intercourse?

Sexual intercourse is defined by section 61HA of the Crimes Act as:

  1. Penetration to any extent of a female’s genitalia, or the anus of any person, by any part of, or object used by, another person,
  2. Introduction of a penis into the mouth of another person,
  3. Cunnilingus, or
  4. The continuation of any of the mentioned activities.

What is consent?

Consent is defined by section 61HE of the Crimes Act as freely and voluntarily agreeing to sexual intercourse.

Subsection 61HE(3) states that consent does not exist where:

  1. You knew the other person (the complainant) did not consent,
  2. You were reckless as to whether the complainant consented or not, or
  3. You has no reasonable grounds to believe that the complainant consented.

Subsection 61HE(4) states that, when determining whether consent exists, the court must look at all relevant circumstances including any steps you took to ascertain whether consent existed, but it cannot consider your self-induced intoxication.

Subsection 61HE(5) makes clear that consent does not exist where the complainant:

  1. Was underage, which means under 16, or under 18 where he or she was under your ‘special care’,
  2. Could not consent due to cognitive incapacity,
  3. Was unconscious or asleep,
  4. Was subjected to threats of force or terror, or
  5. Was unlawfully detained.

Subsection 61HE(6) states that the complainant does not consent where you fraudulently induced him or her into the act, or he or she was under a mistaken belief:

  1. As to your identity,
  2. That he or she was married to you,
  3. That the act was for health or hygienic purposes, or
  4. Other circumstances which amount to fraudulent inducement

Subsection 61HE(8) states that the grounds upon which it may be established that the complainant did not consent include that he or she:

  1. Was substantially intoxicated by alcohol or other drugs,
  2. Consented due to your intimidation, coercion or threats, or
  3. Consented due to your abuse of a position of authority.

The complainant’s failure to provide physical resistance is not, by itself, to be regarded as consent.

What are the defences to sexual intercourse without consent

General legal defences to criminal charges also apply to the offence of sexual intercourse without consent.

These include duress, self-defence and necessity.

Where you are able to raise evidence of a legal defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply.

If the prosecution is unable to do so, you are entitled to an acquittal.

New affirmative consent laws

New ‘affirmative consent’ laws were introduced in New South Wales last year.

These laws make it clear that:

  • A person does not consent to sexual activity unless they said or did something to communicate consent, and
  • An accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent.

The laws expressly confirm that a person has the right to withdraw consent at any time.

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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. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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