The Offence of Sexual Assault in New South Wales

A Sydney doctor has been sentenced to a minimum term of 11 years in prison after being found guilty of sexual offences against 10 patients over a six-month period between September 2016 and March 2017.

62- year old Sharif Fattah was found guilty in May 2019 of 13 counts of sexual assault and five of assault with act of indecency after performing unnecessary medical procedures on female patients aged between 19 and 40.

He was found not guilty of 12 charges.

A total of 16 complainants gave evidence that Mr Fattah performed unnecessarily intrusive procedures, including internal examinations, after they presented with conditions that did not warrant the acts. A 19-year old complainant testified that she was asked humiliating questions and internally examined after presenting with a broken finger.

Another told the court that the doctor insisted on conducting an internal examination after she sought a referral to a gynaecologist, saying he could undertake the procedure himself.

Mr Fattah defended the charges on the basis that his acts were ‘proper medical procedures’.

District Court Judge Sharon Harris sentenced him to a total of 16 and a half years in prison, describing his conduct as a “gross breach of trust of the doctor-patient relationship’.

“Patients have a right to feel safe when consulting a doctor,” she remarked during the sentencing.

“[They] felt violated and at sometimes confused by what the offender had done.”

Mr Fattah will be eligible to apply for release on parole in 2028.

Sexual Assault in NSW

Sexual assault is an offence under section 61I of the Crimes Act 1900 (NSW) (‘the Act’) which carries a maximum penalty of 14 years’ imprisonment.

It is defined as 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 factors such as their age (outlined above) or 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.

Sexual touching in NSW

The offence of indecent assault was repealed in December 2018 and replaced with ‘sexual touching’, which is an offence under section 61KC of the Act that attracts a maximum penalty of five years’ imprisonment.

The section states that a person is guilty of sexual touching if he or she, without the consent of the alleged victim and knowing there is no consent, intentionally:

• sexually touches the alleged victim, or
• incites the alleged victim to sexually touch the alleged offender, or
• incites a third person to sexually touch the alleged victim, or
• incites the alleged victim to sexually touch a third person.

What is sexual touching?

Section 61HB of the Act defines ‘sexual touching’ touching another person with any part of the body or with anything else, or through anything, including anything worn by either person, in circumstances where a reasonable person would consider the touching to be sexual.

The section provides that the matters to be taken into account when deciding if an act is sexual include whether:

• the area of the body touched or doing the touching is the person’s  genital area, anal area or – in the case of a female person, or a transgender or intersex person identifying as female – the person’s breasts, or
• the alleged offender’s actions are for sexual arousal or sexual gratification, or
• any other aspect of the touching, or the circumstances surrounding the touching, make it sexual.

Touching is not sexual if done for genuine medical or hygienic purposes.

Aggravated sexual touching

Section 61KD of the Act prescribes a maximum penalty of seven years in prison where sexual touching occurs in circumstances of aggravation; in other words, where:

• the alleged offender is with another person or persons, or
• the alleged victim is (whether generally or at the time of the incident) under the alleged offender’s authority, or
• the alleged victim has a serious physical disability, or
• the alleged victim has a cognitive impairment.

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, and
• Lawful correction of a minor.

Charged with a criminal offence?

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