CIB 007 - Sexual Offences

Question 1

In all cases of sexual violation, what must the Crown prove beyond reasonable doubt?

Answer 1

• there was an intentional act by the offender involving sexual connection with the complainant, and
• the complainant did not consent to the sexual act, and
• the offender did not believe the complainant was consenting, or
• if the offender did believe the complainant was consenting, the grounds for such a belief were not reasonable.

Question 2

Name the act, section and elements for Sexual Violation By Rape.

Answer 2

Section 128(1)(a) Crimes Act 1961
• A person
• Rapes
• Another person

Question 3

Name the act, section and elements for Sexual Violation By Unlawful Sexual Connection.

Answer 3

Section 128(1)(b) Crimes Act 1961.
• A person
• Has unlawful sexual connection
• With another person.

Question 4

Define sexual connection.

Answer 4

Section 2 Crimes Act 1961.

Sexual connection means —
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise then for genuine medical purposes, of —
(i) a part of the body of another person; or
(ii) an object held or manipulated by another person; or
(b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or
(c) a continuation of connection of a kind described in paragraph (a) or (b).

Question 5

Proof of penetration may be established by:

Answer 5

• the complainant’s evidence
• medical examination, including physical injuries and DNA evidence
• the defendant’s admissions.

Question 6

Define ‘genitalia’.

Answer 6

Section 2 Crimes Act 1961

Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female, or of indeterminate sex).

Question 7

What was held in R v Koroheke in relation to genitalia?

Answer 7

R v Koroheke
The genitalia comprise the reproduction organs, interior and exterior … they include the vulva [and] the labia, both interior and exterior, at the opening of the vagina.

Question 8

Define ‘penis’.

Answer 8

Section 2 Crimes Act 1961.

Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person is male, female, or of indeterminate sex).

Question 9

Define ‘consent’.

Answer 9

“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.

Question 10

What was held in R v Cox in relation to consent?

Answer 10

Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment”.

Question 11

What was held in R v Gutuama in relation the objective test in consent?

Answer 11

R v Gutuama
Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought the [the complainant] was consenting”.

Question 12

Invalid consent.
Allowing sexual activity does not amount to consent in some activities.

Identify these circumstances.

Answer 12

Section 128A Crimes Act 1961

A person does not consent if —
• he or she does not protest or offer physical resistance.
• he or she allows the activity because of force to him or her or some other person, threats of the application of force to him or her or some other person, or the fear of the application of force to him or her or some other person.
• the activity occurs while he or she is asleep or unconscious.
• the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
• the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse consent to the activity.
• he or she allows the sexual activity because he or she is mistaken about who the other person is.
• he or she allows the act because he or she is mistaken about it’s nature and quality.

Question 13

What was held in R v Koroheke in relation to invalid consent?

Answer 13

R v Koroheke
It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.

Question 14

Define ‘rape’.

Answer 14

Section 128(2) Crimes Act 1961.

(2) Person A rapes Person B of Person A has sexual connection with Person B, effected by the penetration of Person B’s genitalia by Person A’s penis, —
(a) without Person B’s consent to the connection; and
(b) without believing on reasonable grounds that Person B consents to the connection.

Question 15

Name the section, act and elements for ‘Sexual Violation by Unlawful Sexual Connection’.

Answer 15

Section 128(1)(b) Crimes Act 1961.

• A person
• Has unlawful sexual connection
• With another person.

Question 16

Name the act, section and elements for ‘Attempted sexual violation’.

Answer 16

Section 129(1) Crimes Act 1961.

• Attempts
• To commit sexual violation
• Of the other person.

Question 17

Name the section, act and elements for ‘Assault with intent to commit sexual violation’.

Answer 17

Section 129(2) Crimes Act 1961.

• Assaults
• Another person
• With intent
• To commit sexual violation
• Of the other person.

Question 18

List the two main forms of sexual violation.

Answer 18

The two forms of sexual violation are rape and unlawful sexual connection.

Question 19

Discuss the penalty provisions for sexual violation as set out in s128B of the Crimes Act 1961.

Answer 19

Punishment for sexual violation is imprisonment for a term not exceeding 20 years, and imprisonment should always be imposed on conviction unless there are special circumstances that justify a departure from the rule.

Question 20

In negating consent, the Crown has to prove one of three things. List the three things.

Answer 20

The Crown must prove that:
• the victim did not consent, or
• the victim’s consent was not valid, or
• the defendant did not believe in reasonable grounds that the victim was consenting.

Question 21

Discuss the two elements that need to be proved in a charge of Assault with intent to commit sexual violation, s129 Crimes Act 1961.

Answer 21

The two elements that need to be proved for a charge of Assault with intent to commit sexual violation are that the offender:
• assaulted the victim, and
• intended to commit sexual violation.

Question 22

Explain the difference between rape and unlawful sexual connection.

Answer 22

Rape is a specific form of unlawful sexual connection that involves the penetration of the complainant’s genitalia by the offender’s penis.

Unlawful sexual connection (s128(1)(b) Crimes Act 1961) captures all forms of non-consensual sexual connection, other than those that amount to rape.
It therefore includes:
• penetration of a person’s genitalia or anus by another person’s body (such as finger in vagina, or penis in the anus)
• penetration of a person’s genitalia or anus by an object held or manipulated by another person (i.e. vibrator, deodorant bottle or other hand-held objects)
• touching of a person’s genitalia or anus by another person’s mouth or tongue (i.e. oral sex).

Question 23

If a male has sexual intercourse with his 18-year-old home stay student, what offence has he committed?

Answer 23

No offence (18 years and over is not an offence).

Question 24

When is the offence of sexual grooming s131B Crimes Act 1961 complete?

Answer 24

• When the offender intentionally meets the young person
• When the offender travels with intention of meeting the young person
• When the offender arranges for or persuades the young person to travel with the intention of meeting him or her

Question 25

When can previous consistent statements be admissible?

Answer 25

Previous consistent statements will really only be admissible as rebuttal evidence.

Question 26

How far out must a prosecutor give the transcript to counsel before preliminary hearing or defended summary hearing?

Answer 26

At least 7 days.

Question 27

What are the 3 categories/types of Adult Sexual Assault complaints?

Answer 27

Acute - Reported within 7 days of the offence.
Non-Acute - 7 days to 6 months of the offence.
Historic - Longer than 6 months.

Question 28

Is it an offence for an adoptive parent to have sexual intercourse with his 18-year-old daughter?

Answer 28

Yes.
Where a child has been adopted, the birth parents remain ‘parents’ for the purpose of the offence of incest, and the adoptive parents are also considered ‘parents’.

Question 29

Unless a Judge gives permission, no evidence can be given and no question can be put to a witness that relates directly or indirectly to?

Answer 29

Section 44 Evidence Act 2006
(a) the sexual experience of the complainant with the defendant
(b) the sexual experience of the complainant with any person other than the defendant
(c) the sexual disposition of the complainant.

Question 30

Define ‘genetalia’.

Answer 30

Section 2 Crimes Act 1961
Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female, or indeterminate sex).

Question 31

What was held in R v Koroheke in relation to genetalia.

Answer 31

The genitalia comprise the reproduction organs, interior and exterior … and include the vulva [and] the labia, interior and exterior, at the opening of the vagina.

Question 32

Define ‘penis’.

Answer 32

Penis include a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is a male, female, or indeterminate sex).

Question 33

What was held in R v Gutuama in relation to the objective test of consent?

Answer 33

Under the objective test, the Crown must prove that no reasonable person in the accused’s shoes could have thought the complainant was consenting.

Question 34

What was held in R v Koroheke in relation to consent?

Answer 34

It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable.
For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.

Question 35

What was held in R v Harpur in relation to ‘attempt’?

Answer 35

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

Question 36

What was held in R v Harpur in relation to ‘proximity’?

Answer 36

“[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”.