Trespass to the Person: Moon v Whitehead  ACTCA 17
An employee, who claimed she was sexually assaulted by her supervisor on a work conference has been awarded over $600,000 in damages after the ACT Supreme Court of Appeal upheld the decision that the employee had not consented to sexual activity and consequently that the supervisor committed a trespass.
In 2007 Ms Whitehead attended a two day work conference with her supervisor, Mr Moon. The pair agreed to share a two bedroom apartment, on the condition that each would have their own bedroom.
On the first night of the conference, the pair consumed alcohol and visited sex shops before returning to their apartment where Ms Whitehead decided to have a shower. Mr Moon entered the bathroom and requested to soap her back, however, Ms Whitehead refused and Mr Moon left the bathroom.
After Ms Whitehead went to bed Mr Moon entered her bedroom. The events that followed were contested by the parties; however Ms Whitehead’s account was favoured.
Ms Whitehead alleged that Mr Moon climbed on top of her naked and requested a good night kiss. She told Mr Moon to “get out”, however he continued to kiss her and she was pinned under his weight. Ms Whitehead explained she felt resigned and worried that she might lose her job after Moon repeatedly ignored her protests. Sexual intercourse followed.
Mr Moon denied that Ms Whitehead had protested his advancement, however agreed that she never explicitly gave her consent. He did submit however that her consent was inferred from her conduct.
The Court heard that Mr Moon and Ms Whitehead had previously worked together in 2005 for a different employer. During this time the pair had a sexual relationship short of penile-vaginal intercourse. In 2007, during a meeting to discuss the possibility of Ms Whitehead commencing work with Mr Moon at the Child Support Agency, she informed him that she would not sleep with him nor pursue a relationship.
Master Harper found that Ms Whitehead did not consent to any sexual activity on the night in question and accordingly that Mr Moon had committed a trespass to Ms Whitehead’s person, awarding her aggravated damages.
$658,856 damages to Ms Whitehead was upheld by the Supreme Court of Appeal. However, the Court of Appeal set aside a component of aggravated damages amounting to $10,000.
Mr Moon appealed this decision on a number of grounds including:
- The Master erred in dismissing Moon’s honest belief he had the consent of Ms Whitehead;
- Evidence of the pairs previous sexual encounters was not properly considered;
- The question of consent should be considered objectively;
- The Master erred in finding that Moon had not proven on the balance of probabilities that Ms Whitehead had consented to the sexual conduct.
It was found that Mr Moon and Ms Whitehead’s history had been properly considered and whilst relevant, the real issue was whether Ms Whitehead had consented to the sexual activity on the night in question.
While Mr Moon may have honestly and even reasonably believed he had the consent of Ms Whitehead, an error of fact would not constitute a defence and Mr Moon had to prove on the balance of probabilities that his conduct was subject to a “lawful excuse”, being the actual consent of Ms Whitehead.
The court held that consent is not proven objectively, based on what a reasonable person would have considered, but by establishing the actual state of mind of Ms Whitehead.
Given the overwhelming evidence including: the evidence of Ms Whitehead herself, her previous refusal to sleep with Mr Moon, her rejection of Mr Moon in her bathroom and the psychological injury suffered, it was held that Mr Moon had not satisfied this onus.
Mr Moon’s appeal was partially upheld regarding the award of Ms Whitehead of aggravated damages on the grounds of procedural error.
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