FAMILY VIOLENCE AND SEXUAL ASSAULT
INTRODUCTION
Family Violence, Domestic and Sexual Violence can and often are inter-related. If you have been or have reason to believe that you may be charged with assault, assault of a sexual nature or indecent assault arising out of a domestic dispute it is urgent that you contact one of our experienced criminal lawyers immediately.
Recently, there has been an increase in such violence within Australia, where it is widespread across all cultures, ages and socio-economic groups and the majority of those who experience these forms of violence are women.
Research suggest that domestic violence in Australia is more wide-spread than is commonly perceived. Historically, statistics on domestic violence in Australia were calculated based on report of the incidents, whereas now we are aware that only a marginal proportion of such violence is actually reported.
Even so, as per the Australian Bureau of Statistics, women were more likely than men to have experienced physical assault by a male in their home; an estimated 62 per cent of women compared to 8 per cent of men. Both men and women were more likely to experience physical violence than sexual violence, however, women were much more likely to have experienced sexual assault than men. An estimated 17 per cent of women and 4 per cent of men had experienced sexual assault. Notably, men and women who had experienced sexual assault since the age of 15 were more likely to have been assaulted by someone they knew rather than by a stranger.
As per the New South Wales Bureau of Crime Statistics and Research (BOSCAR), there has been a 2% increase in incidences of domestic violence and other family related violence this quarter. Over the last twelve months, leading up to June 2015, there have been 28, 939 incidents of assaults relating to domestic violence. In New South Wales, the Far West region as well as Central Coast see the highest proportion of such assaults. Sexual Assaults, Indecent Assaults, Acts of Indecency and other such acts of sexual violence (collectively, ‘sexual offences’) have also increased by 2.9% this quarter within New South Wales. The total incidences of sexual offences are in excess of 10000.
Generally, incidences of assault, both sexual and otherwise are more prevalent in domestic settings as opposed to non-residential settings.
The seriousness of the issue is noted in the fact that an entire chapter of the Crimes Act 1900 (NSW) is designed to protect those who suffer or have suffered from domestic violence and abuse. The New South Wales Crimes Act provides that protection by providing powers to the Local Courts, enabling them to make Apprehended Violence Orders (AVOs) to protect those in need. AVOs exist in two categories: Domestic Violence Orders (DVOs) for those who live in a domestic relationship with the alleged perpetrator and Personal Violence Orders (PVO) are for all other categories of victims.
DOMESTIC SEXUAL VIOLENCE
Violence against women is defined by the United Nations as ‘any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life’. Generally, the most ubiquitous form of violence experienced by women in Australia is violence perpetrated by an intimate partner or family member (commonly referred to as domestic or family violence). This is not to say that violence against men does not occur.
Domestic violence may include physical, sexual, financial, emotional or psychological abuse, harassment, intimidation, stalking, and damaging of joint or personal property. Emotional or psychological abuse often includes an array of controlling behaviors such as the use of verbal threats, restrictions on finances, isolation from family members and friends as well as public or private humiliation. It is the most underreported of crimes because the perpetrator knows the victim intimately through a long-term, close or developing relationship. The perpetrator relies on developing, during the early stages, a strong bond through friendship, love, trust and loyalty to create a high degree of co-dependence. The underlying behavioural traits of power and control are then employed to commit the crime. Generally, family violence is usually a broader term referring to violence between family members as well as intimate partners. It is often the preferred term used in the context of violence experienced in Indigenous communities. These communities often involve a variety of kinship and marital arrangements.
Sexual offences are the most common means through which such violence is perpetrated.
Section 61I of the Crimes Act 1900 (NSW) contains the offence of 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.’ Sexual intercourse involves thepenetration of the vagina or anus of a person using a body part or an object ororal sex. Importantly, the definition of consent as required by the section is also noted in the Act. It denotes that the offender is to know that the other is not consenting even if the offender is just reckless as to whether the second person is consenting. The law also states that a person is taken to ‘know’ that the other person is not consenting if the offender has no reasonable grounds upon which to conclude that the other person was consenting. As such, the Court must be convinced beyond reasonable doubt that intercourse occurred, without consent and with knowledge of the lack of consent. Defences thus include the denial of any of these three factors.
Within the realm of sexual offences which may be inflicted in a domestic setting is indecent Assault (61L of the Act), which carries a maximum penalty of 5 years imprisonment and is defined as, ‘Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person’.Indecent assault may result from a slight touch to an unwanted kiss.
THE PROBLEM
Often due to fear of one’s partner, and other constraints upon the victim, incidences of sexual assault especially in relation to family violence goes unreported.
This is the reason why domestic sexual abuse is taken very seriously by the courts. Victims are often seen as particularly helpless in circumstances where they feel they cannot leave the family home under threat of further abuse. While children and women are especially vulnerable in these situations, men too can be the victims of physical and sexual assault within a familial setting.
If you have been or have reason to believe that you may be charged with assault, assault of a sexual nature or indecent assault arising out of a domestic dispute it is urgent that you contact one of our experienced criminal lawyers Sydney immediately. Our criminal lawyers will be able to provide you with advice including the explanation of a range of defences such as self-defense, the notion of consent etc, which may be available to you. Our criminal defence lawyers are available for urgent 24 hour advice. Call 02 9261 8640.