Recklessness in sexual assault characterizes the state of mind of the accused who despite knowing that the victim has not consented to the sexual act still persisted in engaging in sexual intercourse with the victim.
This persistence of the accused despite the absence of expressed consent must be proved as an element of the crime of sexual assault. Proof of this recklessness must be beyond reasonable doubt.
Evidence of the state of mind of the accused can only be inferred from the actions and statements of the accused before, during and after the sexual intercourse. Thus, if during the sexual intercourse, the accused asked the victim’s permission, there can be no recklessness on his part. For instance, if the accused used phrases such as: “I’d like to hold your hand, if you’d let me’ or ‘You look so beautiful tonight, I’d like to kiss you’ and he waited for some response from the accused, there can be no recklessness. If the accused, while undoing the buttons of the victim’s clothes stops at each button and says, ‘should I go on?’ and waits for the victim’s response, there is no recklessness.
If the accused says ‘I’d like to kiss you all over’ and the victim snuggled closer or proceeded to remove her clothing -- that would be express consent. If the accused started touching the private parts of the victim and the victim immediately says ‘my anus is off limits’ and despite having said this, the accused still persisted in inserting his penis or fingers or even his tongue into the victim’s anus then that would be recklessness as the consent of the victim was specific and limited.
If for example, having begun initiating intercourse, the victim sees what looks like a lesion on the genital area of the accused and pulls away from him and says ‘Wait, stop, what’s that?’ and before the accused could answer that it is only a birthmark, the victim turns away and begins dressing herself.
These actions of the victim show that her consent has been withdrawn. If the accused persists in having sexual intercourse with the victim, and says, ‘You can’t do this to me. You can’t lead me on and drop me.’ This is clearly reckless disregard of the lack of consent of the victim. This is sexual assault.
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Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.