Rape or Sexual Assault? What is the Correct Legal Term in New South Wales?

Yesterday’s sentencing of former football star Jarryd Hayne has triggered online debate about whether the correct description of the offence for which he was convicted is ‘rape’ or ‘sexual assault’.

Mr Hayne was convicted of two counts of sexual assault, which is an offence under section 61i of the Crimes Act 1900. The section states:

“61I Sexual assault

Any person who 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 is liable to imprisonment for 14 years.”

Despite this, many describe the conduct as ‘rape’, which is entirely understandable given this was the terminology used throughout much of our recent history, and continues to be the preferred description applied in various forms of popular media.

In fact, rape continues to be a discrete offence in many jurisdictions, both in Australia and other countries.

However, the correct legal description in our state is ‘sexual assault’.

Here’s a thumbnail sketch of how, when and why the change was made.

Offence of rape abolished

The common law offence of rape was abolished in New South Wales by the Crimes (Sexual Assault) Amendment Act of 1981 which inserted section 80AD into the Crimes Act 1900.

The section makes clear that ‘[t]he common law offences of rape and attempted rape are abolished.’

The amending Act inserted a number of new sexual assault offences into the Crimes Act, which were at the time:

• Section 61B – Sexual assault category 1 – inflicting grievous bodily harm with intent to have sexual intercourse – maximum penalty of 20 years in prison,
• Section 61C – Sexual assault category 2 – inflicting actual bodily harm with intent to have sexual intercourse – maximum penalty of 12 years in prison, and
• Section 61D – Sexual assault category 3 – sexual intercourse without consent – maximum penalty of 7 years in prison, or 10 years where the victim was under the age of 16 years.

Reasons for the change

The change was the product of activism, research and consultation during the 1970s and 1980 which aimed, among many other things, to:

• Better describe the conduct that constitutes the offence,
• Reflect that some sexual offences are more serious than others,
• Remove part of the stigma associated with reporting such assaults and
• Dispel myths and misconceptions relating to complainants and assailants.

The research identified that women and children were viewed at the time to be prone to lying; that their ‘cries of rape’ could not be trusted.

That sentiment has prevailed for hundreds of years, with the 17th century English jurist Sir Matthew Hale putting it in the following terms, “rape is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused, tho’ never so innocent”.

The reforms also aimed to dispel the inaccurate view that ‘rapes’ were predominantly perpetrated by strangers such as nefarious figures in dark alleyways, and enforce that those who are close to or known by victims – including their husbands (who historically could not be guilty of raping their wives) – can and often do commit the offence.

One of the overriding objectives was to make it easier for victims to report sexual offences.

Further reform

The number of sexual offences contained in the Crimes Act 1900 has drastically increased since the early 1980s, and there are now well in excess of 100 such offences in the Act.

In addition to this, the Crimes Amendment (Consent -Sexual Assault Offences) Act 2007 inserted section 61HA into the Crimes Act (now amended and contained in section 61HE) which sought to better define consent and list the circumstances whereby consent is negated.

There are also criminal sanctions for those who fail to remove a child from the risk of abuse or who conceal a child abuse offence, which does not currently extend in New South Wales to information divulged to members of the clergy under the seal of confession.

Reform continues in the area, with moves to further expand the circumstances in which consent is negated in order to make it easier for prosecutors to convict defendants, and to compel members of the clergy to report information about child sexual abuse.