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    A former Australian boxing champion has been found guilty of sexual intercourse without consent.

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      marc bargero sexual intercourse without consent

      The Offence of Sexual Intercourse Without Consent

      A former Australian boxing champion has been found guilty of sexual intercourse without consent.

      Marc Bargero claimed he only ‘sniffed’ a 15-year-old girl while she was sleeping, however a District Court judge did not accept his evidence.

      By contrast, the court found that the complainant was a ‘compelling’ witness.

      Bargero was granted bail for sexual assault and will return to Court for sentencing in June.

      Sexual Assault Charges

      Marc Bargero pleaded not guilty to sexual intercourse without consent and intentional sexual touching and proceeded to a judge-alone trial.

      The 53-year-old was visiting a woman in Sydney’s northern beaches when the girl arrived with a group.

      The 15-year-old consumed alcohol before passing out. Bargero then took her upstairs and placed her on a bed.

      The alleged victim told Sydney District Court that he moved the girl towards the edge of the bed, pulled her pants down, got on his knees, kissed her stomach and licked her vagina.

      The girl woke up and ran downstairs. She told the others in the house, “I just woke up and he was just eating me out.”

      Marc Bargero recalled “sniffing” the girl in a drunken attempt to relive a sexual memory from his youth. He went on to say that he could not remember licking the 15-year-old’s vagina.

      During his interview with police, the former boxer said he wanted to relive his first sexual experience where he would get under a table and “sniff” an older woman.

      “I had my head down there but I was just sniffin it. I got carried away in the moment, I got a bit too drunk,” he said.

      Police asked him if he touched the girl’s vagina, to which he replied, “I don’t think so … I just sniffed.”

      When he spoke to friends after the incident, he said, “something snapped” in his head and he “f**ked up big time.”

      “On my mother’s grave … it was just the sniffing of the vagina, there’s none of this licking,” he told another friend.

      Judge Tim Gartelmann found the girl was a “compelling” witness during the trial.

      “She appeared calm, quiet and sad. She gave her account in plain and simple terms. She did not seek to provide a narrative but responded to questions. There is no basis to conclude that the complainant’s intoxication with alcohol resulted in a false memory of the perception of feeling the accused kiss her belly and lick her vagina.”

      In assessing Bargero’s interview with police, Judge Gartelmann said, “His intoxication was such that he acknowledged he did not remember all he did. His account leaves open that he may have done the act but not remember it. The accused acknowledged in interview that he did not consider consent at the time. He knew she did not consent.”

      Judge Gartlemann found Marc Bargero guilty of sexual intercourse without consent and intentional sexual touching.

      Who Is Marc Bergero?

      Marc Bargero is a former Australian boxer who fought the likes of Anthony Mundine in his prime.

      He went by the nickname, “Working Class Man” and received numerous accolades. These included both domestic and international honours, including the Australian light heavyweight, Australian middleweight and Asia Pacific light heavyweight titles.

      Bargero resides on the NSW Central Coast where he owns a gym and runs a concreting business.

      Despite the guilty verdict, he was granted bail and will return to court for sentencing in June.

      What is Sexual Intercourse Without Consent?

      Sexual intercourse without consent is an offence under section 61I of the Crimes Act 1900 (NSW) which has a maximum penalty of 14 years’ imprisonment.

      This is commonly known as the offence of ‘sexual assault’. A person is guilty if they have “sexual intercourse with another person without the consent of the other person and knows that the other person does not consent to the sexual intercourse”.

      What is Sexual Intercourse?

      Sexual intercourse is defined in section 61H of the Crimes Act as:

      (a) the penetration to any extent of genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

      (i) any part of the body of another person, or

      (ii) any object manipulated by another person,

      except where the penetration is carried out for proper medical purposes, or

      (b) the introduction of any part of the penis of a person into the mouth of another person, or

      (c) cunnilingus

      There have been a number of recent examples of these charges being dismissed after an accused retains a leading criminal lawyer for sexual assault. You can read about some of those cases by clicking here. Call Astor Legal on (02) 7804 2823. Or, you can email info@astorlegal.com.au.

      What is the Legal Definition of Consent?

      Consent is defined in Section 61HE of the Crimes Act as a person freely and voluntarily agreeing to sexual activity.

      An alleged offender can be found to have known that consent to sexual activity did not exist if they:

      • know the alleged victim does not consent, or
      • are reckless as to whether the alleged victim consents, or
      • have no reasonable grounds to believe the alleged victim consents.

      In determining whether there is consent, the court must consider whether the Accused too any positive steps to ascertain whether there was consent.

      The court cannot take into account any self-induced intoxication on the part of the alleged offender.

      There is no consent where the alleged victim:

      • does not have the capacity to consent due to their age; the age of consent in NSW is generally 16 years, or 18 years where the complainant is under the defendant’s ‘special care’, or
      • does not have the capacity to consent due to a lack of cognitive ability, or
      • does not have the opportunity to consent because they are unconscious or asleep, or
      • consents because of threats of force or terror, or
      • consents due to being unlawfully detained, or
      • was substantially intoxicated,
      • was intimidated, coerced or threatened in any way, or
      • was under the authority or trust of the alleged offender.
      • consents because of a mistaken belief:
      • about the identity of the alleged offender,
      • that the activity is for health or hygienic purposes, or
      • that arises through any fraud.

      If a person does not resist sexual activity, that by itself is not sufficient to establish consent.

      Defences to Sexual Intercourse Without Consent

      The following are defences to sexual intercourse without consent:

      • Duress, which is where you were threatened or coerced,
      • Necessity, where the act was necessary to avert danger, and
      • Self-defence, where you engaged in the act to defend yourself or another.

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