Age offences and indecent assault

Question 1

Sexual Conduct with child under 12

Crimes Act 1961, Section 132

Answer 1

(1) Everyone who has sexual connection with a child is liable not exceeding 14years
(2) Everyone who attempts to have sexual connection with a child is liable not exceeding 10 years
(3) Everyone who does an indecent act on a child is liable not exceeding 10 years
(4) It is not an defence to a charge under this section that the person charged believed that the child was of or over the age of 12 years
(5) It is not a defence to a charge under this section that the child consented

(6) In this section-
(a) child means a person under the age of 12 years and
(b) doing an indecent act on a child includes indecently assaulting the child

Question 2

Crimes Act 1961, Section 132(1)

Answer 2

Sexual conduct with child under 12

• Everyone who
• has sexual connection
• with a child

Question 3

Crimes Act 1961, Section 132(2)

Answer 3

Sexual Conduct with Child under 12

• Everyone who
• attempts to have sexual connection
• with a child

Question 4

Crimes Act 1961, Section 132(3)

Answer 4

Sexual conduct with child under 12

• Everyone who
• Does an indecent act
• on a child

Question 5

Consent of a child

Answer 5

A distinction must be drawn between a child who is simply compliant and one who is truly consenting based on a full understanding of the act.

The Court of appeal held that it would be in ‘exceptional and rare circumstances’ that a child under 12 could give legal consent.

She will not, simply because of her age and stage of sexual development, understand the significance of the act. Therefore any consent she may purport to give will not be a legal consent because it will not be either rational or informed.

Question 6

Cox v R (Consent Child)

Answer 6

Although we do not exclude the possibility that a child of ten or eleven may be able to give a full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare

Question 7

Cox v R (Reasonable belief in consent of a child)

Answer 7

Save in exceptional and rare circumstances . . . even where she indicates an agreement to the act occurring . . . no reasonable adult would have grounds for believing that a ten or eleven year old has the experience or maturity to understand the nature and significance of the act

Question 8

Crimes Act 1961, Section 132(5)

Answer 8

It is not a defence to a charge under this section that the child consented

Question 9

Child

Answer 9

Section 132(6)
In this section -
(a) a child means a person under the age of 12 years

Question 10

Case Law - Proof of age

Answer 10

R v Forrest and Forrest

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age

Question 11

R v Court

Answer 11

Indecency means ‘ conduct that right-thinking people will consider an affront to the sexual modesty of the complainant’

Question 12

Indecent Act
Section 2(1B), Crimes Act 1961

Answer 12

For the purpose of this Act, one person does an indecent act on another person whether he or she -
(a) does an indecent act with or on the other person,
or
(b) induces or permits the other person to do an indecent act with or on him or her

Question 13

Indecent Act with a Child

Answer 13

An ‘indecent act’ is generally accepted as an act accompanied by circumstances of indecency. Has sexual connotations and involved conduct directed at a person that is offensive to public moral values.

If such an act is done with the consent of the child it is immaterial whether

• The offender does the act on the child
• the child does the act on the offender
• the act is mutual

Question 14

Crimes Act 1961, Section 134

Sexual Conduct with young person under 16

Answer 14

Section 134
(1) Everyone who has sexual connection with a young person is liable not exceeding 10 years

(2) Everyone who attempts to have sexual connection with a young person is liable not exceeding 10 years
(3) Everyone who does an indecent act on a young person is liable not exceeding 7 years

Question 15

Section 134(4 & 5)
Not convicted /Charged

Answer 15

(4) No person can be convicted of a charge under this section if he or she was married to the young person concerned at the time of the sexual connection or indecent act concerned
(5) The young person in respect of whom an offence against this section was committed cannot be charged as a party to the offence if the person who committed the offence was of or over the age of 16 years when the offence was committed

Question 16

Section 134(6)

Answer 16

In this section -

(a) Young person means a person under the age of 16 years and
(b) doing an indecent act on a young person includes indecently assaulting the young person

Question 17

Consent of a young person

Answer 17

The courts recognised that in some cases young people may be capable of giving legal consent to sexual activity, sufficient to provide a defence to a charge of sexual violation (128) appropriate charge would be 134(1)

Question 18

Section 134A, Crimes Act 1961

Statutory defence

Answer 18

134A - Defence to charge under section 134

(1) It is defence to a charge under section 134 if the person charged proves that, -
(a) before the time of the act concerned, he or she had taken reasonable steps to find out whether the young person concerned was of or over the age of 16 years, and
(b) at the time of the act concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years and
(c) the young person consented

Question 19

Section 135, Crimes Act 1961

Answer 19

Indecent Assault (7 years)

• Everyone who
• indecently
• assaults
• another person

Question 20

Indecent Assault defined

Case Law

Answer 20

R v Leeson

‘The definition of ‘indecent assault’ . . . is an assault accompanied with circumstances of indecency. . .’

Question 21

Indecent Assault prosecution must prove

Answer 21

• the defendant intentionally assaulted the complainant
• the circumstances accompanying the assault were indecent
• the defendant intended the conduct that a reasonable person would find indecent

If the issue of consent is raised:

• The complainant did not consent to the assault and
• the defendant did not honestly believe the complainant was consenting

It must be proved that the defendant intended to act indecently

Question 22

Assault within indecent assault

Answer 22

Section 135 requires proof of an assault but needs not be forceful or violent.

Given the wide definition of assault, indecent assaults may include attempts to apply force and threats to act or gesture to apply force in circumstances of indecency

Question 23

Belief in Consent (section 135)

Answer 23

Unlike Sexual violation, with indecent assault an honest belief that the complainant was consenting alone is sufficient even if not reasonable.

Question 24

Section 195, Crimes Act 1961

Ill-treatment or neglect of child or vulnerable adult

Answer 24

10 years
(1) everyone who being a person described in subsection (2), intentionally engages in conduct that, or omits to discharge or perform any legal duty the omission of which is likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult (the victim) if the conduct engaged in, or the omission to perform the legal duty, is a major departure from the standard of care to be expected of a reasonable person.

(2) The persons are -
(a) a person who has actual care or charge of the victim; or
(b) a person who is a staff member of any hospital, institution or residence where the victim resides

Question 25

Child for section 195 & 195A

Answer 25

person under the age of 18 years

Question 26

Section 195A, Crimes Act 1961

Failure to protect child or vulnerable adult

Answer 26

10 years

(1) Everyone who being a person described in subsection (2) has frequent contact with a child or vulnerable adult (the victim) and -
(a) knows that the victim is at risk of death, greivous bodily harm or sexual assault as a result of -
(i) an unlawful act by another person or
(ii) on omission by another person to discharge or perform a legal duty if, in the circumstances, that omission is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies; and
(b) fails to take reasonable steps to protect the victim from that risk

(2) The persons are -
(a) a member of the same household as the victim; or
(b) a person who is a staff member at any hospital, institution, or residence where the victim resides