3.The Evidence Relied Upon by the Plaintiff Is As Follows

2.2.3Sexual Assault[1]

Judicial note: Sexual Assault is a form of battery.Battery is the intentional contact with another person’s body that is either harmful or offensive. Regard should be had to the charge to the jury for Battery, adapted as appropriate.

Introduction

1.Members of the Jury, in this civil trial, the plaintiff alleges thaton [date], [he/she] was sexually assaulted by the defendant. On that day, she alleges the defendant [insert nature of the sexual act] at [insert description of the premises or place where the assault is said to have occurred].

2.It is a matter for the plaintiff to prove to you, on the balance of probabilities, that the assault took place in the manner [he/she] has described.

3.The evidence relied upon by the plaintiff is as follows:

• [set out the evidence of the plaintiff and any other witnesses relied upon].

Consent

If the defendant alleges consent, insert the following shaded section:

4.The defendant says that while [he/she] admits the [sexual act] took place,[he/she] says that at the time, the plaintiff consented. As the defendant alleges there was consent, then he bears the onus of proving that to you. The standard is the same as the plaintiff, that is on the balance of probabilities. In other words, has the defendant proved to you that at the time of the [sexual act] the plaintiff was consenting. If you are satisfied that at the time, the plaintiff was consenting, then [his/her] action fails.
5.What is consent[2]? Consent is a state of mind. It means free agreement. It may be shown by what a person says or does or by what a person does not say or do. You should consider whether the plaintiff was consenting at the time by reference to all of the surrounding and relevant circumstances. You should consider the following:
Insert one or more of the following bullet points, as appropriate to the case:

• what the plaintiff and defendant said at the time;
• the nature of their relationship before the event;
• the behaviour and demeanour of the parties at the time; and
• whether alcohol or drugs affected the parties at the time, in particular whether the plaintiff was in a position to give free agreement in [his/her] state;

6.When considering this issue of consent you should bear in mind the following:
Insert one or more of the following bullet points, as appropriate to the case:

• Consent that is obtained by force; fear of harm is not consent at all.

• Consent cannot be given when a person is unlawfully detained.
• A person is not able to give consent when they are asleep, or so affected by drugs or alcohol as to be incapable of free agreement.
• A person, who is mistaken as to the sexual nature of the act or the identity of the person, is not consenting.
• A person who mistakenly believes the act is for medical or hygiene purposes is not consenting[3].
• Silence or failure to give specific agreement does not necessarily mean consent.
• A failure to protest or physically resist does not necessarily mean consent.
• Consent on an earlier occasion is not necessarily indicate consent on a subsequent occasion, but may be taken into account.

7.The plaintiff is not required to prove that the defendant either knew that [he/she] was not consenting or that a reasonable person in the defendant’s position would have known that [he/she] was not consenting[4].
If the defendant alleges belief in consent, insert the following:
8.As the defendant says that he believed the plaintiff was consenting at the time of the [sexual act] it will be necessary for you to consider [his/her] state of mind. Was the belief [he/she] held that the plaintiff was consenting, reasonable in all the circumstances that existed at the time? Did the defendant honestly form the view the plaintiff was consenting? A belief that the plaintiff may be consenting is not enough.
9.The evidence relied upon by the defendant as to consent is as follows:

• [set out relevant evidence]

Damages

10.If you are satisfied the plaintiff was sexually assaulted in the manner [he/she]alleges, then it will be necessary for you to go and consider damages[5].

[Refer to the chapter on Damages for the relevant directions]

Judicial note:Where the plaintiff suffers physical or mental injury as a result of the sexual assault, the general charge to a jury as to damages is appropriate. However, depending on the nature of the act, the following shaded section may be appropriate.

If the plaintiff does not allege physical or mental injury as a result of the assault, consider including the following shaded section:

11.It is not necessary, given the nature of the alleged assault for the plaintiff to prove she has suffered physical or mental injury.You may take into account any humiliation, degradation or loss of dignity or reputation you are satisfied the plaintiff has suffered, and compensate her accordingly.

Vicarious liability of institutional defendant

Judicial note: In cases where allegations are made against an institution, (such as a Catholic order, government home or the like) as being vicariously liable for the actions of its members, servants or agents see cases such as:

• JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWACA Civ 938; and
• The Catholic Child Welfare Society and ors v Various Claimants & the Brothers of the ChristianSchools and ors [2012] UKSC 56 (21 November 2012)].

Last updated: 14 April 2014

1

[1] Note: This charge is a guide only, and may require modification to fit the facts of an

individual case

[2]See generally Young, P.J., 'Is there Consent with respect to Assault?', (2011) 85 ALJ 23.

[3]Consent to the penetration of one's body for the purpose of medical treatment is not consent for other purposes such as sexual gratification or financial gain. The nature and character of the act of penetration may vary with the purpose for which it is performed – further a practitioner's honest and reasonable belief that the patient has consented is not a defence to a claim in tort. The absence of consent may flow from the incapacity of the patient, innocent misrepresentation or maladministration by the practitioner or hospital, or fraud on the part of the practitioner or other person responsible for obtaining consent. See Dean v Phung [2102] NSWCA 223.

[4]Non Marine Underwriters, Lloyds of London v Scalera [2000]1 SCR 551.

[5]In many cases of sexual assault, exemplary and aggravated damages may be pleaded. See further the directions in 3.7 Aggravated damages and 3.8 Exemplary damages.