SA Is This a Sexual Assault Case?

[johnathan1]

I am wondering what I can/should do and if this is considered sexual assault?

I live at a university college and there was a party in which I went to. It involved large amounts of alcohol and I was very intoxicated. Once the party finished, the majority of the college then walked to the local pub. I remember this fine and then I remember the first 20 or so minutes of being at the pub, before blacking out and not remembering anything until the next morning, when I awoke in a completely randoms girl's bed at the college.

I do not remember meeting this girl at the pub and have a very slight snapshot recollection of being in her bed with her on top of me. I later found at that day that we had sex that night and I am very scared as I do not know if protection was used and am very fearful of her becoming pregnant. I have absolutely no recollection of sexual consent and feel violated and embarrassed.

I have photos of hickeys on my neck from the night on my phone. What can/should I do? This happened a week ago.

 

[Rod]

Stop drinking to excess.

 

[Rob Legat - SBPL]

I'm not a criminal lawyer, and I don't practise in SA, so take this accordingly. You know how badly females are treated in the justice system in the same sort of circumstances as yours? You're going to get treated worse if you pursue the matter. I'm not saying don't, but you need to know that once you start you'll likely be met with ridicule, disbelief and dismissal. There are people who do not accept that a man can be raped by a woman. You will be hard put to overcome the question of consent, if for no other reason than the claim that you were able to perform so therefore you consented.

The issue is that you were apparently intoxicated. Whether you can or cannot form consent at all will be in question. However, unless the women was sober she will be in the same boat. Can you be reasonably sure she was unaware that you were not consenting to what happened? If you behaved in a manner which could reasonably be considered as consent, and did not make it clear that you were not consenting, how could she be expected to know? Add complexity to that with the addition of alcohol.

You'll also need to be aware to the possibility that if you raise the issue it can be very quickly flipped around if she claims you sexually assaulted her.

As well as the ramifications from taking it through the justice system, you'll also need to consider the fallout within the university. Sexual assault is always a hot topic in such places, and you may find there are consequences academically and socially.

So, my suggestion is that you be sure you did not consent to the encounter, that she was aware you did not consent to the encounter and are prepared for the outcomes before you consider reporting this to anyone. If you're satisfied with these, go and speak to the police. Sexual assault should not be tolerated no matter who is the victim and who is the perpetrator.

 

[Iamthelaw]

Prima facie r**e.

Much will come to the issue of consent, as it is in 99% of r**e cases. The SA legislation particularly ss46 and 47 set out that a person is taken not to have freely and voluntarily agreed to sexual activity if: the activity occurred whilst the victim was asleep or unconscious or the activity occurred whilst the victim was intoxicated to the point of being incapable of freely and voluntarily agreeing (among other scenarios).

Moreover a person can be held liable if they are recklessly indifferent to the persons wishes meaning that they are aware of the possibility that the person might not be consenting but decide to proceed regardless of that possibility or is aware of the possibility that the other person might not be consenting but fails to take reasonable steps to ascertain whether the other person does in fact consent before proceeding or does not give any thought to whether or not the other person is consenting to the act.

Even if she was intoxicated at the time, she can still be guilty, albeit subject to other considerations. There are a huge number of variables that play into the above.

From here you ought to consider what Rob Legat has mentioned in his post.

 

[qarmatian]

'Sexual assault' is a term used in NSW because legally-speaking 'r**e' doesn't exist there anymore. In South Australia it's still called r**e.

r**e is gender-neutral, so a man can be raped by a woman.

The SA test for r**e would be that she intentionally caused you to penetrate her without your consent AND either she did not believe that you were consenting or she was so reckless she didn't care to think if you consented. But this has to be proven by the prosecutor beyond reasonable doubt, which is a high standard.

When a girl falls pregnant there are Centrelink implications because of child support. If the woman is convicted of raping the man who impregnated her then perhaps he'd be able to avoid paying child support. Even if you don't go through with telling the police, I'd be keeping as many written records now as possible so that if she turns out pregnant and blames you you can claim r**e and hopefully avoid near lifelong Centrelink debt.