Historical Sexual Assault: The Laws at the Time of the Alleged Conduct Apply

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By Paul Gregoire and Ugur Nedim

When the 10-year-old boy entered Year 5 at a New South Wales Catholic primary school in 1977, there would have been some level of familiarity between him and his teacher, Gaye Grant, as she knew his family outside of teaching at the educational institution she’d been working at since 1967.

The sexual abuse commenced in April 1977, when she’d arranged for the 10-year-old to attend her home, when her husband and kids were out, and she had him touch her breasts. And a series of encounters over six months, progressed on to kissing, masturbation and then sexual intercourse – conduct which would amount to the offence of sexual assault in the present day, due to the fact the child was below the age of consent in New South Wales.

The intercourse continued between the woman teacher and her male student from October 1977 until June 1979, at which point the boy who’d started high school, realised the relationship was abnormal and broke it off. And Grant was visibly upset on being told.

Forty years later and the man was in his early fifties when told his wife about the abuse in late 2019. He then reported the matter to police in 2021. And after a surveillance device warrant was issued in June that year, Grant admitted to the relationship during a series of calls recorded over two days.

And the former Catholic school teacher then participated in a 24 June 2021 police interview, in which she declined the offer of legal advice.

Detectives put the multiple allegations of child sexual abuse to the woman, who initially said she couldn’t recall specifics, but then admitted to the relationship and knowing how old the boy was.

Developing child sex offences

The offender, now in her seventies, was charged with 22 counts of the now-appealed offence of indecent assault on a male, which appeared under section 81 of the Crimes Act 1900 (NSW) and was revoked in June 1984. And this offence had carried five years imprisonment.

Grant was charged under section 81, as it was understood to cover her offences. And that law was revoked as part of the Crimes (Amendment) Act 1984 (NSW), which was the historic bill that decriminalised homosexual acts between consenting male adults over the age of 18.

The 1984 legislation created a number of offences regarding nonconsensual sexual acts between a man and a boy.

One was now-repealed section 78K of the Crimes Act, which made it illegal for an adult man to have sex with a boy under 18, which carried 10 years prison. And repealed section 78Q had carried the offence of a man committing gross acts of indecency with a boy under 18, which carried 2 years.

These enacted sex crimes against boys established a male age of consent of 18 in terms of sex with an adult man, while prior to this, there had been no age of consent for males in general. Although the age of consent for females had been set at 16 years of age in 1910.

A huge overhaul of NSW child sexual abuse laws was legislated in 2018, following the findings of the institutionalised child sex abuse royal commission. And it was in the wake of this, that the NSW Director of Public Prosecutions in early 2022 approved the case against Grant under section 66EA.

Historical nature reflected in sentencing

Section 66EA of the Crimes Act contains the offence of persistent sexual abuse of a child, which is a crime that consists of an unlawful sexual relationship with a child under 16, which is considered to have occurred when an adult perpetrates two or more of a range of unlawful sexual acts.

This offence was initially enacted in 1998 and carried a 25 year maximum penalty. But after the 2018 overhaul of child sex abuse laws, the crime carries up to life imprisonment, and this penalty can be applied retrospectively.

The NSW DPP filed a 2 March 2022 charge certificate against Grant for one count of the section 66EA offence. And the charge sheet listed a number of alleged unlawful sexual acts, including kissing the victim, masturbating them, performing fellatio and having penile/vaginal intercourse with the boy.

Grant pleaded guilty to the charge of 66EA in the Wollongong Local Court on 3 August. However, in line with section 21B of the Crimes (Sentencing Procedure) Act 1999 (NSW), “a court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing”.

NSW District Court Judge Andrew Haesler reflected that there is no evidence of any cases involving a woman at the time of the offending, let alone a woman teacher. And he also outlined that such a crime was more likely to result in a good behaviour bond back then rather than actual gaol time.

So, on 22 December 2022, his Honour sentenced Grant to 6 years and 9 months prison time, with non-parole set at 3 years and 4 months, which was a sentence that further reflected a 25 percent sentencing discount due to the utilitarian value of the defendant’s early guilty plea.

An impossible crime

But Grant appealed her conviction to the NSW Court of Criminal Appeal (NSWCCA) on 24 April this year, based on a single ground, which asserted a miscarriage of justice had occurred as she’d been convicted of a charge for which she could never have lawfully committed.

The woman in her late 70s raised the appeal after the ruling of the NSWCCA case Lam versus R, which was handed down on 12 February this year.

That case involved four men alleging that Helga Lam had sexually abused back in 1978, in a similar manner to the Grant case. The boys were aged between 13 and 16 at the time. Lam was working as a teacher. And the allegations led to 15 counts of section 81 laid against her.

NSWCCA Justice Roddy Meagher explained that section 81 had never applied to acts committed by a woman on a man or a boy, rather it criminalised a male who has sex with another male regardless of age, as the law even considered this “unnatural” between consenting male adults.

While Justice Peter Garling observed that if this law was applied to women it would come to the “absurd” interpretation that any adult woman who engaged in sexual conduct with a consenting adult male would have broken the law.

Therefore, Grant’s conviction under section 66EA, which comprised of unlawful sexual acts that contradicted section 81 of the Crimes Act, was invalid.

And the NSWCCA noted that the 2018 amendments were to apply retrospectively but only to behaviour that was a crime at the time of commission.

“I must acknowledge the significant distress no doubt being experienced by the victim in this matter,” said NSWCCA Justice Sarah McNaughton last month, adding that this was especially so, as Grant had admitted and pleaded guilty to the acts she’d been convicted over.

On 24 May, her Honour allowed the appeal, and Grant’s conviction was quashed. And due to the fact that there was no operative offence that made her behaviour a crime, she was acquitted.

And NSWCCA Justices David Davies and Natalie Adams agreed with their colleagues’ reasons and orders.


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