What Constitutes ‘Penetration’ for a Sexual Assault Offence in NSW?

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'Penetration' for a Sexual Assault

Sexual offences in New South Wales have always distinguished between non-consensual physical activity involving actual penetration – including the historical offence of rape which was abolished in 1981 and the offence carnal knowledge which was abolished in 1986 – and non-penetrative, non-consensual physical sexual activity, including the offence of indecent assault which was abolished in 2018.

Non-consensual penetrative sexual activity in our state is now known as the offence of sexual assault, while non-consensual sexual activity that does not involve penetration is now known as the offence of sexual touching.

The primary difference between these offences is, of course, the fact of penetration, which can make a vast difference to the maximum penalty that applies.

For example, while the offence of sexual touching (with no aggravating factors) under section 61KC of the Crimes Act carries a maximum penalty of 5 years in prison, the offence of sexual assault (again with no aggravating factors) under section 61i of the Act comes with a maximum of 14 years.

The offence of sexual assault in New South Wales

To establish the offence of sexual assault, the prosecution must prove each of the following ‘essential elements’ (or ingredients) beyond a reasonable doubt:

  1. A person had sexual intercourse with another person,
  2. The other person did not consent to the activity, and
  3. The first person knew the other person was not consenting, or was reckless as to whether the other person was consenting, or had a genuine but unreasonable belief as to whether the other person was consenting.

And while the meaning of sexual consent is important and has been subject to a great deal of change in recent times – including the introduction of affirmative consent requirements and associated judicial directions – the focus of this article is the first essential element, and specifically on the meaning of ‘sexual intercourse’ in the Crimes Act and its interpretation by the courts.

The definition of sexual intercourse in New South Wales

‘Sexual intercourse’ is defined by section 61H of the Crimes Act 1900 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 constitutes ‘penetration’?

For the requirement of penetration to be established, it is clear there must be more than touching of or over the genitalia or anus another – the physical contact must involve some degree of entry by any part of one person’s body, or by an object under one person’s control, into another’s genitalia, or fellatio (introducing a penis into the mouth of another) or cunnilingus (contact by a person’s mouth to a female’s genitalia).

In the leading case of Johnson v R [2017] NSWCCA 278, the New South Wales Court of Criminal Appeal – which is the highest criminal court in the state – was called upon to determine whether the trial judge’s direction to the jury regarding the meaning of penetration was correct and sufficient.

The case involved a complainant  who described the alleged sexual act in the following manner: “he put his penis in between my vagina, not inside, but on the outside, and he was just rubbing his penis on my vagina”.

The judge’s direction to the jury at trial was as follows:

If you were satisfied beyond reasonable doubt that he did rub his penis between her vagina, not inside but on the outside, “and just rubbing it on my vagina”, you would still then need to ask the question did he penetrate to any extent the female genitalia? Now, I stress the female genitalia. Mr Lowe at one stage in his closing address to you said did he penetrate her vagina? He does not actually have to penetrate her vagina. As a matter of law, the actual legal test is female genitalia. Now, you have got women on your jury. I am not about to give you an anatomy lesson, except to say that, obviously, the female genitalia involves the outer aspects of the female vaginal cavity. So, it is not whether he penetrated, ultimately, the vagina itself, it is whether he penetrated the female genitalia.

The NSWCCA found this direction to be appropriate and sufficient under the law, stating:

There must be due recognition of the ordinary wisdom, knowledge, and life experience of the members of the public who make themselves available to serve as jurors does not require an in-depth explanation of anatomy. There is little point in the criminal justice system claiming to value the contribution of members of the public, whilst at the same time devaluing the intelligence of jurors to the extent where trial judges are required to extensively explain, and even draw diagrams, to aid in the understanding of matters within ordinary knowledge

So in summary, the court found that it is for jurors to use their own knowledge, life experience and common sense to determine whether ‘penetration’ occurred.

Precedent applied

The NSWCCA decision was applied this year in the District Court case of R v RM (No 4) [2023] NSWDC 93.

That case involved a trial for 11 alleged sexual offences against a complainant which was claimed to have occurred while she was between 9 and 18 years.

The complainant testified in the course of the proceedings that during one of the sexual encounters, the defendant’s penis “… was kind of just like he was never like it was never in, but it was like almost in. I’m not sure how else to describe that.”

The following questioning then took place:

Q. Do you know the proper words for your vagina, the outer lips of your vagina?

A. Yes.

Q. Would you agree if I said the outer lips of the vagina were the labia majora? Do you understand that term?

A. Yes.

Q. If you think about your labia majora and you think about where the accused’s penis was at the time that you’re telling us about, was it outside the lips of the labia majora or inside the lips of the labia majora or something else?

A. It was, kind of, like, both, in a way. It was, kind of, like in the middle ground. Like, it would never kind of, yeah.

After the close of the prosecution case, the defence applied for the judge to direct the jury to return a verdict of not guilty for the relevant count of sexual assault on the basis that that a reasonable jury properly instructed could not reach the conclusion that penetration had occurred.

His Honour Judge Abadee refused the application, citing the case of Johnson v R before  finding that:

Taking the Crown case at its highest, in my opinion, it would be open to the jury to find that the complainant’s evidence that the accused’s penis was inside her labia majora constituted a penetration of her vagina, and there of the female genitalia, and thereby constituted a penetration of the vagina, and thereby satisfied the notion of penetration of the female genitalia, and, therefore, that the element of sexual intercourse would be made out.

Applying the decision of the NSWCCA, the Learned Judge held that a reasonable juror could find this amounted to penetration, and that finding must be left to their own knowledge and life experience.

Do we need a distinction based on penetration?

Some have argued that the focus definitions such as ‘penetration’ in the context of sexual assault offences is outdated and unhelpful.

Professor Jeremy Gans from the University of Melbourne, for example, noted in his submission regarding similar sexual offences in Victoria that a focus on ‘penetration’:

…imposes a difficult and arbitrary defining line between two tiers of sexual offences (and, in some instances, between criminal and non-criminal behaviour), one that may result in confusing, arbitrary and intrusive discussions between participants in the criminal justice system, including lay participants and especially alleged sexual offence victims.

An undue focus on the specifics of the sexual act are potentially re-traumatising and humiliating for complainants.

In his view, such definitions are out of date with modern understandings of sexual activity, which can encompass a variety of sexual acts that do not involve any sexual penetration at all.

The contrary view is, of course, that having no such definition can leave fact-finders without guidance and therefore equally confused, potentially leading to miscarriages of justice,

Have you been charged with sexual assault?

If you are going to court over a sexual assault matter, call Sydney Criminal Lawyers anytime on 9261 8881 to arrange a free first conference during which one of our experienced defence lawyers will assess the case, advise you of your options and the best way forward, and fight for the optimal outcome.

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Jarryd Bartle

Jarryd Bartle is an Associate Lecturer in Criminology and Justice Studies at RMIT University and a consultant for the Bridge of Hope Innocence Initiative, which investigates claims of wrongful conviction and advocates for systemic reform to protect against miscarriages of justice.
Ugur Nedim

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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