A PE teacher who had sex with a 17-year-old student at his school did not commit a crime, according to a new ruling handed down at the NSW Court of Criminal Appeal.
The man was cleared of any wrongdoing at a previous trial, but the Crown contested the decision, with prosecutors claiming the defendant offended under Section 73 of the Crimes Act 1900.
This piece of legislation states it is an offence for someone to have sexual intercourse with another individual aged between 17 and 18 if that person is under his or her special care.
Specifically, the Act prohibits sexual activity if the alleged offender has an established personal relationship with the victim through the provision of religious, sporting, musical or other instruction. As a PE teacher, the man would appear to fall under the definition of providing sporting instruction.
The main point of contention in the original trial was whether or not the alleged victim could be considered under the special care of the defendant.
While the man had been the girl's PE teacher between 2011 and 2013, he had not taught her for nearly two years when they had consensual sex in September and October 2015.
The defendant's legal team successfully argued there was no established connection between the pair at the time their relationship became sexual, despite the fact they both remained at the same school.
As such, the girl was not considered under his special care for the purposes of the Act and he was found not guilty.
Three judges were tasked with reviewing the trial judge's ruling, which involved drilling down into the construction of Section 73.
After examining precedent cases and poring over the specific wording of the Act, the appellate judges agreed with the original decision.
"I do not accept the Crown's contention that the necessary authority or power, the abuse of which criminalises otherwise consensual sexual intercourse, is capable of exercise by a person who does not provide any form of instruction to another between the ages of 17 and 18," Justice Megan Latham stated.
"The provision of instruction from the tutor to the pupil is the activity that creates the 'power relationship'."
While this was a criminal case, it highlights the complexities involved when the courts rule on instances of alleged sexual assault and abuse.
Victims can pursue compensation through the civil courts for institutional sexual misconduct they have suffered. This includes crimes committed in schools, government organisations and religious institutions.
Please contact a member of our team at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers to learn how you can proceed with a claim.