12. Sexual Offences Flashcards
Define “sexual violation”.
The non-consentual sexual connection with another person.
Includes some who:
- rapes another person, or
- has unlawful sexual connection with another person
Define “rapes”
The non-consentual penetration of the complainants genitalia by the offenders penis.
Must prove:
- the connection happened without the complainants consent, AND
- did not have reasonable grounds for believing the complainant consented to the connection.
Note: the penis can be a surgically constructed one.
Define “sexual connection”
The introduction into the genitalia or anus of one person, by:
a) the body part of another, or
b) an object held/manipulated by another.
Also includes the connection between the mouth/tongue of one person and the genitalia/anus of another.
Covers the initial act, and the continuation of the act.
Excludes genuine medical procedures.
When has “penetration” been completed?
Introduction [of the body part/instrument into the genitalia/anus] to the slightest degree is enough to effect a connection.
Is there recourse when the complainant is the one penetrating the offender?
Yes. In sexual violation by sexual connection [s128(1)(b)] it does not specify the role in terms of who is penetrated.
Allows for the complainant to be the one committed the penetration under duress.
Define “genitalia”.
Organs of generation.
For males it includes the penis and testicle. (Also allows for surgically constructed penises for transgender offenders)
For females it includes the vagina and vulva.
Define “penis”
The male organ of reproduction which forms part of the genitalia.
Can be surgically constructed.
Is the “anus” included in the definition of genitalia?
No it is not.
Therefore non-consentual penile penetration of the anus is not rape.
Define “object held/manipulated”.
Anything, other than part of their own body, used to penetrate the complaints genitalia or anus.
How is sexual connection of the mouth/tongue effected?
Just contact with the genitalia or anus will suffice. Does not need to penetrate.
Define “continuation” in regards to the definition of sexual connection.
Continuation captures situations where sexual activity is commenced consentually, but consent is later withdrawn.
Define “consent” in regards to sexual violation.
Cite relevant case law.
A person’s conscious and voluntary agreement to something desired or proposed by another.
In terms of sexual violation, recklessness as to believing in consent is not consistent with having a reasonable belief in it.
R v Cox - consent is full, voluntary, free and informed, freely and voluntarily given by someone capable of providing it.
R v Adam’s- Consent is relevant at the time the act actually took place.
R v Cook - to be effective, consent must be real, genuine and true, conveyed by words, conduct or both.
Define “indecency”.
An act that is “indecent” has sexual connotations and involves conduct directed at a person that is offensive to public morals.
What does s128(1)(a) of the Crimes Act 1961 relate to?
What are the elements of the offence?
What’s it’s maximum penalty?
Sexual violation by rape.
- A person
- Rapes
- Another person
20 years imprisonment
What does s128(1)(b) of the Crimes Act 1961 relate to?
What are the elements of the offence?
What’s it’s maximum penalty?
Sexual violation by unlawful sexual connection.
- A person
- has unlawful sexual connection
- with another person
20 years imprisonment.
What does s129(2) of the Crimes Act 1961 relate to?
What are the elements of the offence?
What’s it’s maximum penalty?
Assault with intent to commit sexual violation.
- a person
- Assaults
- another person
- with intent to commit sexual violation of the other person.
10 years imprisonment.
What does s132 of the Crimes Act 1961 relate to?
What are the elements of the offence?
What’s it’s maximum penalty?
Sexual conduct with a child under 12.
- a person:
(1) has sexual connection with a child, OR
(2) attempts to have sexual connection with a child, OR
(3) does an indecent act on a child.
Variable penalty depending on action:
(1) - 14 years imprisonment
(2) - 10 years imprisonment
(3) - 10 years imprisonment
What does s134 of the Crimes Act 1961 relate to?
What are the elements of the offence?
What’s it’s maximum penalty?
Sexual conduct with a young person under 16.
- A person
(1) has sexual connection with a young person, OR
(2) attempts to have sexual connection with a young person, OR
(3) does an indecent act on a young person.
Variable penalty depending on the act:
(1) 10 years
(2) 10 years
(3) 7 years
What does s135 of the Crimes Act 1961 relate to?
What are the elements of the offence?
What’s it’s maximum penalty?
Indecent assault.
- A person
- Indecently assaults
- Another person.
7 years imprisonment
What must be proved for all sexual violation cases?
- There was an intentional act involving sexual connection with the complainant, AND
- the complainant did not consent to the sexual act (subjective test), AND
- the defendant did not believe the complainant was consenting (subjective test), OR
- if he did believe she was consenting, the grounds for belief were not reasonable (objective test).
NOTE: recklessness as to whether the complainant consented or not is not consistent with having a reasonable belief in the consent.
What does s128A of the Crimes Act 1961 relate to?
When consent is invalid for sexual connection. Includes:
- MISTAKEN identity
- IMPAIRMENT (drug or alcohol)
- (mistake) about the NATURE and quality of the act.
- IMPAIRMENT (intellectual/physical/mental)
- FORCE used (fear, applied ot threatened)
- ASLEEP or unconscious
- (lacking) PROTEST or physically resisting
Acronym - MINIFAP
When is consent invalidated with regards to sexual connection?
Cite the relevant legislation.
s128A of the Crimes Act 1961.
- MISTAKEN identity
- IMPAIRMENT (drug or alcohol)
- (mistake) about the NATURE and quality of the act.
- IMPAIRMENT (intellectual/physical/mental)
- FORCE used (fear, applied ot threatened)
- ASLEEP or unconscious
- (lacking) PROTEST or physically resisting
Acronym - MINIFAP
What is s134A of the Crimes Act 1961 relate to?
Defence to the charge of s134 (sexual conduct with a young person under 16).
It is a defence to a charge incurred under s134 if the defendant:
- Had taken reasonable steps to ascertain the young person was at least 16, AND
- They believed on reasonable grounds that the young person was at least 16, AND
- The young person consented.
What does s134(4) relate to?
Defence to a charge of s134 (sexual conduct with a young person under 16)
It is a defence if the young person and the accused are married.
With regards to sexual conduct, what is the statutory age of a child?
Under 12 years of age.
With regards to sexual conduct, what is the statutory age of a young person?
Under the age of 16.
How do you prove penetration?
- Complainant’s evidence
- Medical examination/DNA
- Defendant admissions
In regards to sexual violation, can the accused be reckless in a belief of consent?
No. Recklessness as to whether the complainant consented or not is not consistent with having a “reasonable belief” in the consent.
No reasonable belief in consent is one of the elements that the Crown must prove for a successful charge of sexual violation.
What are the two distinguishing factors between “attempted sexual violation”[s129(1)] and “assault with intent to commit sexual violation” [s129(2)]?
1) An attempt to commit sexual violation does not necessarily involve an assault.
2) An assault with intent to commit sexual violation may not be sufficiently proximate to the full offence to constitute an attempt.
What is the mens rea/actus reus in a case of attempted sexual violation?
- Intent to commit the offence, AND
- take a “real and substantive step towards achieving that aim”
What must be proved beyond reasonable doubt for a case of attempted sexual violation?
- They intended to have sexual connection with the complainant, AND
- The complainant did not consent (subjective), AND
- The offender did not believe the complainant was consenting (subjective), OR
- If he did believe she was consenting, the grounds for belief were not reasonable.
NOTE: recklessness as to whether the complainant was consenting or not is not consistent with having a reasonable belief in consent.
With a charge of assault with intent to commit sexual violation [s129(2)CA61], does the assault need to be of an indecent nature?
No, not necessarily.
The assault just needs to be completed with the intent to commit the sexual violation.
I.e. attempting to hold the person down.
What are some acts that may constitute “sufficiently proximate” for sexual conduct matters (according to the American Model Penal Code)?
- Lying in wait/searching/following the victim.
- Enticing the victim to go to the scene.
- Reconnoitering the scene
- Unlawful entry into a structure/vehicle/enclosure
- Possession of instruments
- Soliciting an innocent agent.
What is the mens rea associated to assault with intent to commit sexual violation [s129(2)CA61]?
- They intended to have sexual connection with the complainant, AND
- The complainant did not consent (subjective test), AND
- They did not believe on reasonable grounds that the complainant was consenting.
What does s127 Crimes Act 1961 relate to?
No presumption of law that a person is incapable of sexual connection because of their age.
I.e. can’t say that a person was too old or young to commit such an act.
Can a child under the age of 12 consent to sexual activity?
Cite relevant case law.
No set rule of minimum age of consent.
Cox v R found that children under 12 can provide consent in “exceptional and rare circumstances”.
In the unlikely event that a child’s consent is a defence to sexual violation [s128(1)(a or b)], s132(5) sets out that consent is not a defence to sexual conduct with a child under 12.
What does s132(5) Crimes Act 1961 relate to?
Consent is not a defence to sexual conduct with a child under 12 [s132CA61]
In the unlikely event that a child’s consent is a defence to sexual violation [s128(1)(a or b)], s132(5) sets out that consent is not a defence to sexual conduct with a child under 12.
Is it a defence to a charge of sexual conduct with a child under 12 if the accused believed the child was over 12?
Cite relevant legislation.
No it is not.
s132(4) Crimes Act 1961.
With regards to sections 132 and 134 of the Crimes Act 1961 (sexual conduct with a child under 12 / sexual conduct with a young person under 16), can the CYP consent to an indecent assault?
No.
Under s134 of the Crimes Act 1961 (sexual conduct with a young person under 16), is consent from the young person a defence to the charge?
Yes, provided the defendant also meets the persuasive onus on them - that they:
- Took reasonable steps to ascertain the young person was at least 16, AND
- They believed on reasonable grounds that the young person was at least 16, AND
- The young person consented.
What is required of a person committing an indecent assault?
The defendant must deliberately assault someone in circumstances which “right-thinking members of society” would regard as indecent.
Can not be accidental.
What must the prosecution prove for a charge of indecent assault? [s135CA61]
- The defendant intentionally assaulted the complainant, AND
- the circumstances accompanying the assault were indecent, AND
- the defendant intended the conduct that a reasonable person would find indecent.
Consent is a defence to an ADULT charge of an indecent assault (not CYP).
If consent is raised as a defence, prosecution must also prove:
- the complainant did not consent to the assault, AND
- the defendant did not “honestly believe” the complainant was consenting.
Is consent a defence to a charge of indecent assault [s135CA61]
Yes.
If consent is raised as a defence, prosecution must also prove:
- the complainant did not consent to the assault, AND
- the defendant did not “honestly believe” the complainant was consenting.
Case law
R v Koroheke (genitalia)
Genitalia comprise the reproduction organs interior and exterior.
They include the vulva, labia, both interior and exterior, at the opening of the vagina.
Case law:
R v Koroheke (consent)
Consent is freely given, rather than submission to something unwanted or unavoidable.
Case law:
R v Cox
Consent is full, voluntary, free and informed. Freely and voluntarily given by a person in a position to form rational judgement.
Case law:
R v Gutuama
Under the objective test, the Crown must prove that no reasonable person in the accused shoes could have thought that the complainant was consenting.
Case law:
R v Harpur
The court may have regard to the conduct viewed cumulatively up to the point the conduct stops.
The defendants conduct may be considered in its entirety.
Considering how much is left to be done is relevant, although not determinative.
Case law:
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution to prove age.
Case law:
R v Court
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of the complainant.”
Case law:
R v Dunn
Indecency must be judged in light of time, place and circumstance.
Must be more than trifling, and warrant sanction of the law.
Case law:
R v Leeson
The definition of “indecent assault” is an assault accompanied with circumstances of indecency.
Case law:
R v Adams
Consent is relevant at the time the act actually took place.
Case law:
R v Norris
If a person who is charged with indecent assault is able to establish that they honestly believed that the complainant was consenting, they are entitled to be aquitted even though the grounds of his belief were unreasonable.
What does s44 of the Evidence Act 2006 relate to?
Protection of the victims’ character in sexual complaints in Court.
Comments and evidence are strictly limited to what is relevant to the case, and are not unfairly prejudicial.
What does s87 of the Evidence Act 2006 relate to?
Who does it apply to?
Privacy as to witness’s precise address.
Protects the witness from giving their street name, number, Town and community they lived in.
All witnesses in a proceeding.
What does s88 of the Evidence Act relate to?
Who does it apply to?
Restriction on disclosure of complainant occupation in sexual cases.
Unless permission granted by the Court.
What does s121 of the Evidence Act 2006 relate to for sexual complaints?
The complainants evidence does not have to be corroborated.
Can the defendants silence be construed as an admission in sexual complaints?
Yes - if the accuser and defendant are on equal footing.
What does s90 of the Criminal Procedure Act 2011 relate to?
Application for oral evidence order.
What does s93 of the Crriminal Procedure Act 2011 relate to?
Additional considerations for oral evidence order (s90) in sexual cases.
Court must consider vulnerability of complainant, AND the impact on them giving oral evidence.
What does s97 of the Criminal Procedure Act 2011 relate to?
Restricts who may be present in court if a sexual complaint victim gives evidence under an oral evidence order (s90).
The court retains the power to exclude anyone from proceedings.
Case law:
R v Felisse
Regarding sexual offences
Corroborating evidence strengthens a case for prosecution, but it’s absence does not make a conviction impossible.
Case law:
R v Moana
Regarding sexual offences
The time element between the alleged attack and the observation (of the complainant) by the witness is all-important.
Case law:
R v Tawhara
Regarding sexual offences - s97 Criminal Procedure Act 2011
There is no necessary limit to the number of people the complainant or defendant may request to remain in the court room.
I.e. support people.
What is the primary and secondary objectives of referring a sexual violation victim to a medical forensic exam?
Primary - victims physical, sexual, and mental health and safety.
Secondary - forensic evidential materials.
What are the Police sexual assault reporting timeframes?
Acute - SV occurred less than 7 days old.
Non-acute - SV occurred 7 days to 6 months ago
Historic - SV occurred 6 months + ago.
