Attempted Sexual Violation

Question 1

How is attempted sexual violation and assault with intent to commit sexual violation distinguished?

Answer 1

• an attempt to commit sexual violation does not necessarily involve an assault
• an assault with intent to commit sexual violation may not be sufficiently proximate to the full offence to constitute an attempt.

Question 2

Attempts to Commit Sexual Violation - Section 129(1) CA 1961

Answer 2

Attempts to Commit Sexual Violation 
Section 129(1) CA 1961 - 10 years imprisonment 

everyone who
attempts to commit sexual violation
of the other person

Question 3

Attempts legislation

Answer 3

Section 72 (1) - CA 1961

Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

Question 4

When is a person guilty of an attempt to commit an offence?

Answer 4

• intend to commit the offence, and

* take a real and substantial step towards achieving that aim

Question 5

Intent to commit sexual violation - what must the Crown prove?

Answer 5

• Defendant intended to commit the full act of sexual violation and
• acted as he did for the purpose of achieving that aim

Question 6

** EXAM ** - Define intent

Answer 6

In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Question 7

How to prove intent?

Answer 7

The onus is generally on the prosecution to prove an offender’s intent beyond reasonable doubt.

While an offender’s admissions as to their intent are potentially good evidence, it is good practice to support these with circumstantial evidence from which their intent can also be inferred.

Question 8

** EXAM ** - What circumstantial evidence can an offenders intent be inferred from?

Answer 8

• the offender’s actions and words before, during and after the event
• the surrounding circumstances
• the nature of the act itself

Question 9

** EXAM ** - What must the crown prove for attempted sexual violation and assault with intent to commit sexual violation?

Answer 9

At the time of the defendant’s conduct he:

• intended to have sexual connection with the complainant, and
• the complainant did not consent to the intended sexual connection; and
• the defendant did not believe on reasonable grounds that the complainant was consenting

Question 10

To be guilty of an attempt the defendant must have….

Answer 10

Progressed past the stage of preparation and started a process intended to lead to the commission of the full offence.

Question 11

** EXAM ** - Attempts Case Law

Answer 11

R v Harpur

An attempt includes “an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime”.

Question 12

Assessing proximity

Answer 12

In assessing proximity, the Court will analyse the defendant’s conduct at the relevant time, in conjunction with evidence of his intent based on the circumstances and any steps taken leading up to that point.

Question 13

What does the cumulative assessment allow the court to infer?

Answer 13

The defendant had intended to commit the full offence and had started to do so, even though he may still have been several steps removed from the ultimate act.

Question 14

** EXAM ** - Sufficiently proximate - Case Law

Answer 14

R v Harpur

The Court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops the defendant’s conduct may be considered in its entirety. Considering how much remains to be done is always relevant, though not determinative.

Question 15

Examples that may constitute an attempt?

Answer 15

• lying in wait, searching for or following the contemplated victim
• enticing the victim to go to the scene of the contemplated crime
• reconnoitring the scene of the contemplated offence
• unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the offence will be committed
• possession, collection or fabrication of materials to be employed in the commission of the offence
• soliciting an innocent agent to engage in conduct constituting an element of the offence

Question 16

Assault with Intent to Commit Sexual Violation - Legislation

Answer 16

Assault with Intent to Commit Sexual Violation 
Section 129(2) CA 1961 - 10 years imprisonment 

everyone who
assaults another person
with intent to commit sexual violation
of the other person

Question 17

Assault defined

Answer 17

Assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose - Section 2 CA 1961

Question 18

What two different intents can arise for the defendant assaulting the victim?

Answer 18

• in the hope that the complainant will then change their mind and consent to the act (liable for assault or indecent assault) or
• intending to commit rape or sexual connection regardless of whether the complainant changes their mind (liable for attempted SV or assault with intent depending on proximity)

Question 19

What are the situation you might file a charge of assault with intent to commit sexual violation?

Answer 19

• where an offender assaults the complainant because they are intent on having intercourse with the complainant and obtaining the complainant’s consent for that
• as an alternative to a charge of attempted sexual violation (particularly where the proximity between the assault and the completion of the intended sexual violation is an issue)