LAW REPORT
Sexual offences : consequences of inappropriate behaviour in the workplace
Ingrid Pagura | BA , LLB
There has been so much in the news lately about inappropriate behaviour in the workplace that I thought it might be a good idea to review the area in an article . Adding complexity to the situation is the position of a healthcare practitioner in relation to their patients / clients .
First let ’ s look at criminal law and then we will review responsibilities under the Unregistered Health Practitioners Code of Conduct ( NSW ).
In New South Wales , the Crimes Act 1901 covers these areas . There are many offences but the two I will focus on are section 61I Sexual Assault and section 61KC Sexual Touching . In other states and territories , the names of these offences may be slightly different , such as indecent assault instead of sexual touching , but the content is very similar .
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 .
61KC Sexual touching Any person ( the alleged offender ) who without the consent of another person ( the alleged victim ), and knowing that the alleged victim does not consent intentionally ( a ) sexually touches the alleged victim , or ( b ) incites the alleged victim to sexually touch the alleged offender , or ( c ) incites a third person to sexually touch the alleged victim , or ( d ) incites the alleged victim to sexually touch a third person , is guilty of an offence . Maximum penalty is imprisonment for 5 years .
As you can see , in the case of both these offences the issue revolves around whether or not the other person consented to the behaviour . So what does consent mean ? Section 61HA outlines it . Generally , consent means that the person freely and voluntarily agrees to the sexual activity but there are a number of situations where consent is negated , that is , when the person could not be considered to have consented even if they appeared to have done so .
61HA ( 5 ) Negation of consent : a person does not consent to a sexual activity ( a ) if the person does not have the capacity to consent to the sexual activity , including because of age or cognitive incapacity , or
( 6 ) A person who consents to a sexual activity with or from another person in either of the following mistaken beliefs does not consent to the sexual activity : ( 1 ) a mistaken belief that the sexual activity is for health or hygienic purposes , or ( 2 ) any other mistaken belief about the nature of the activity induced by fraudulent means .
( 7 ) For the purposes of subsection ( 3 ), the other person knows that the person does not consent to the sexual activity if the other person knows the person consents to the sexual activity under such a mistaken belief .
( 8 ) The grounds on which it may be established that a person does not consent to a sexual activity include ( c ) if the person consents to the sexual activity because of the abuse of a position of authority or trust .
JATMS | Winter 2021 | 101