Introduction

In New South Wales, sexual assault ranks as a grave crime in the eyes of the law. If such an assault happens between folks who already know each other, it brings about sticky complications for the whole justice process. A prior relationship can really throw a spanner in the works when the court weighs up how serious the crime is.

This article will broadly summarise how a pre-existing relationship between an offender and a victim may influence the perceived seriousness of a sexual assault in NSW courts. Understanding how these relationships are considered is important for people involved in sexual assault proceedings, whether as a victim or an offender.

The Relevance of Pre-Existing Relationships in Sexual Assault Cases

Potential for Reduced Criminality

Australian courts recognise that a pre-existing relationship between an offender and a victim can, in certain situations, affect how seriously a sexual assault offence is viewed. This means that the court may consider the pre-existing relationship as relevant to the objective seriousness of the sexual assault. This consideration can potentially lead to a reduced sentence for the offender. It is important to note that this potential reduction in the perceived criminality of sexual assault is not automatic.

Circumstances Influencing Seriousness

Specific circumstances exist where a pre-existing relationship might lead a court to view a sexual assault as less serious. These circumstances are not exhaustive but include situations where:

• Consent was initially offered and then withdrawn: If a victim initially consents to sexual activity but later withdraws consent, and a sexual assault occurs after this withdrawal, the pre-existing relationship might be considered a mitigating factor. This is because the court may perceive the situation as involving a degree of confusion or miscommunication arising from the prior relationship.
• Confusion regarding consent: In situations where there is confusion on the part of the offender as to whether the victim was consenting due to the nature of their pre-existing relationship, this may also be considered. This does not excuse sexual assault, but it can be a factor in assessing the overall seriousness of the offence in the eyes of the court.

It is crucial to understand that the presence of a pre-existing relationship does not automatically diminish the seriousness of sexual assault. The court will carefully examine the specific details of each case to determine the relevance of the relationship to the offence.

Case Study: NM v R – When a Pre-Existing Relationship Reduced Seriousness

Facts of NM v R

In the case of NM v R [2012] NSWCCA 215, the court considered the relevance of a pre-existing relationship in a sexual assault offence. In this case, the victim suffered significant pain from forced anal intercourse and experienced considerable emotional trauma as a result of the sexual assaults, as evidenced by her text messages. Despite the victim experiencing significant pain and emotional trauma from the sexual assault perpetrated, the court found the sexual assault in this instance to be less serious.

Court’s Reasoning in NM v R

The court in NM v R [2012] NSWCCA 215 determined that the sexual assault offence was less serious based on several key factors related to the pre-existing relationship between the offender and victim. The court reasoned that the sexual assault was less serious due to the following circumstances:

• Lengthy Sexual Relationship: The victim and offender had an established sexual relationship that continued up to the time of the sexual assault offence.
• Familiarity Reduced Terror and Fear: The victim’s familiarity with the offender meant that the sexual assault was not comparable to assaults committed by strangers, which typically induce greater terror and fear in victims.
• Victim’s Initial Willingness: The victim was initially willing to engage in sexual activity with the offender up until moments before the assault occurred.
• Invitation for Sex: The victim had invited the offender to her home with the intention of engaging in sex.

These specific circumstances of the pre-existing relationship led the court to conclude that the sexual assault, while still a criminal offence, was less serious than it might have been without such a relationship.

Case Study: R v Gerard Cortese [2013] – When a Pre-Existing Relationship Did Not Reduce Seriousness

Facts of R v Gerard Cortese

In R v Gerard Cortese, the court considered a case where a prior relationship did not lessen the seriousness of a sexual assault. Mr. Cortese and the victim became acquainted at her workplace, a massage parlour, and started a brief relationship. When the victim ended it, Mr. Cortese insisted on meeting to discuss it and drove her to his home, arguing about the breakup. At his home, Mr. Cortese threatened to reveal her massage parlour job to her family and report her to Centrelink if she ended the relationship. Despite her refusals of his sexual advances, he became aggressive and intimidating.

She refused his kiss and told him “no” when he touched her intimately over her pants. Even when she pushed him away and clearly told him to stop, he persisted. He refused to let her leave. She went to his bedroom and went to sleep crying. The next morning, their argument continued and turned sexual. While she recorded the conversation, Mr. Cortese threatened sexual violence. He forced her onto him, ignoring her “no”. He then penetrated her against her will. Afterward, he told her to leave. During the drive home, he attempted to dismiss the assault, but she asserted he could not “get away with this”. He countered that “nobody will believe” her. She reported the sexual assault to police a month later.

Court’s Reasoning in R v Gerard Cortese

In the case of R v Gerard Cortese, the court determined that the pre-existing relationship did not reduce the seriousness of the sexual assault offence. This was because there was no initial consent from the victim, nor any confusion regarding consent at the time of the sexual assault. The victim consistently refused and resisted Mr. Cortese’s advances over a sustained period.

The court clarified that “the mere fact that there was a pre-existing relationship between an offender and a victim does not mitigate the criminality involved” in sexual assault. Mr. Cortese was initially sentenced to a suspended two-year term of imprisonment and a section 9 good behaviour bond, avoiding full-time prison. However, this sentence was deemed too lenient and was appealed by the prosecution. The Court of Criminal Appeal in NSW overturned the initial sentence and re-sentenced Mr. Cortese to three years of full-time custody, with a non-parole period of 18 months.

The court suggested that the seriousness of the sexual assault might have been reduced if there had been evidence that the victim had at any point offered consent and then withdrawn it, or if there had been “perceptual difficulties” on Mr. Cortese’s part regarding her consent. However, in this case, the victim’s repeated refusals and the coercive circumstances surrounding the assault meant the pre-existing relationship did not lessen the severity of the offence.

Prosecutor’s Perspective and “Acquaintance Rape”

Potential for “Acquaintance Rape” to be Seen as Less Serious

There is a concern that sexual assault cases involving pre-existing relationships, sometimes referred to as “acquaintance rapes,” may be perceived by prosecutors as less serious compared to assaults committed by strangers, often termed “real rapes.” This perception is highlighted by the significantly higher rate of case withdrawals in situations where the victim and offender knew each other. This raises questions about whether prosecutors might hold stereotypical assumptions regarding the nature of violence within relationships.

Evidentiary Challenges and Victim Credibility

From a legal standpoint, the existence of a prior relationship between the victim and the offender significantly impacts the prosecution’s decision-making process. This is largely due to the inherent difficulties in proving non-consent in such cases. Cases involving acquaintances often devolve into “word against word” scenarios, frequently lacking corroborating evidence to support the allegations of sexual assault.

Furthermore, in cases of “acquaintance rape”, victim credibility often faces more intense scrutiny. Delayed reporting by victims in these cases is more likely to negatively influence a prosecutor’s decision to proceed. This suggests a heightened concern regarding the victim’s credibility, rather than solely focusing on the potential loss of evidence due to the delay.

Conclusion

In summary, the presence of a pre-existing relationship between the offender and victim in sexual assault cases in New South Wales can introduce complexities in legal proceedings. While a pre-existing relationship may, in certain specific situations, lead a court to perceive the sexual assault offence as less serious, potentially resulting in a reduced sentence for the offender, this outcome is not guaranteed. The court’s determination is highly dependent on the unique circumstances of each case, with particular emphasis placed on factors surrounding consent at the time of the sexual assault offence. Sexual assualt, regardless of any history, is a serious offence with heavy consequences.

Navigating the complexities of sexual assault cases, especially those involving pre-existing relationships, requires a nuanced understanding of the law and court processes. If you are affected by sexual assault, whether as a victim or an accused offender, it is crucial to seek professional legal advice to ensure your rights are protected and you receive appropriate guidance. Contact Daoud Legal today to consult our experienced team and explore your options in these sensitive and serious matters.

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