42Assault with intent to commit a sexual offence

42 Assault with intent to commit a sexual offence

(a) A intentionally applies force to another person (B); and

(b) B does not consent to the application of that force; and

(c) at the time of applying that force A intends that B take part in a sexual act; and

(d) A does not reasonably believe that B would consent to taking part in that sexual act.

(3) A may commit an offence against subsection (1) even if B is not aware of the application of force by A.

S. 42(3A) inserted by No. 38/2022 s. 10.

(3A) Whether or not A reasonably believes that B would consent to taking part in a sexual act depends on the circumstances.

See section 36B for the effect of intoxication on the standard to be applied in determining whether a person has a reasonable belief.

S. 42(3B) inserted by No. 38/2022 s. 10.

(3B) A's belief that B would consent to a sexual act is not reasonable if A does not say or do anything to find out whether B would consent to the sexual act.

S. 42(3C) inserted by No. 38/2022 s. 10.

(3C) Subsection (3B) does not apply if—

(a) A has a cognitive impairment or mental illness (other than the effects of intoxication that is self-induced within the meaning of section 36B); and

(b) that cognitive impairment or mental illness is a substantial cause of A not saying or doing anything to find out whether B would consent to the sexual act.

S. 42(3D) inserted by No. 38/2022 s. 10.

(3D) A bears the burden of proving on the balance of probabilities the matters referred to in subsection (3C).

(4) Force for the purposes of subsection (1) may be applied—

(a) directly or indirectly; or

(b) to the body of, or to clothing or equipment worn by, B.

(5) In subsection (1)—

application of force includes—

(a) application of heat, light, electric current or any other form of energy; and

(b) application of matter in solid, liquid or gaseous form.

S. 43 inserted by No. 74/2014 s. 4.