Day 9: Sexual Offences all Flashcards
What must be proved in all cases of sexual violation?
- There was an intentional act by the offender involving sexual connection with the complainant
AND
- The complainant did not consent
AND
- The offender did not believe the complainant was consenting OR
- if he did believe she was consenting, the grounds for such a belief were not reasonable
What must occur to be able to charge with rape?
Penetration must occur without the complainant consent, and without the defendant believing on reasonable grounds that the complainant was consenting
What 3 ways can sexual connection occur?
- Penetration of the complainants genitalia or anus
- Connection between the defendants mouth or tongue and the defendants genitalia or anus
- Connection between the complainants mouth or tongue and the defendants genitalia or anus
Definition of sexual violation:
The act of a person who
(1) rapes another person
(2) has unlawful sexual connection with another person
Sexual connection means:
Section 2 interpretation
(a) connection effected by the introduction into the genitalia or anus of one person, (otherwise than for genuine medical purposes)
(i) a part of the body of another person
(ii) an object held or manipulated
(b) connection between the mouth or tongue of one person and a part of another persons genitalia or anus
(c) the continuation of connection of a kind described in paragraph (a) or (b)
How to prove penetration?
- The complainants evidence
- Medical examination, including physical injuries and DNA
- The defendants admissions
R v Koroheke
The genitalia comprise the reproductive organs, interior and exterior, they include the vulva and labia both internal and exterior, at the opening of the vagina.
Penis:
The male reproductive organ. It forms part of the male genitalia, the legislation encompasses trans-gender individuals
Section 127 Crimes Act (Presumption of age):
There is no presumption of law that a person is incapable of sexual connection because of their age
What must the crown prove in terms of ‘consent’?
- The complainant did not
consent (a subjective test)
AND
- The offender did not
believe the complainant
was consenting (a
subjective test)
OR
- If he did believe she was
consenting, the grounds
for such a belief were not
reasonable (objective test)
Define consent:
A persons conscious and voluntary agreement to something desired or proposed by another.
R v Cook
To be effective, consent must be “real, genuine or true consent, and that it may be conveyed by words, conduct or both”
R v Cox
Consent must be “full, voluntary, free and informed…freely and voluntarily given by a person in a position to form a rational judgement”
Explain reluctant consent:
(R v Herbert)
True consent may be given reluctantly and regretted afterwards but if consent is given even in such a manner, provided it is without fear of force or actual/threatened force, then the act of sexual connection would not be rape.
Explain the subjective and objective tests in terms of consent:
Subjective: Absence of consent
Objective: Reasonable grounds for belief in consent
R v Gutuama
Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that the complainant was consenting”.
Recklessness as to consent:
Recklessness as to whether the complainant is consenting is not consistent with having a reasonable belief in consent.
When is consent relevant as to timings?
The time when consent and belief in consent, is to be considered is at the same time the act actually took place.
Crump v R
When there is evidence that consent has been withdrawn, what are the 6 elements that may need to be proven?
- Sure of penetration
- Sure that she did not consent.
- Sure that he knew she wasn’t consenting (subjective)
- Sure that he continued knowing that she was no longer consenting (subjective)
- Sure he did not believe on reasonable grounds that she was consenting. (objective)
- Sure that he continued penetration when a reasonable person would not believe that she was still consenting (objective)
Section 128A: Allowing sexual activity does not amount to consent in which circumstances: (7)
- Lack of protest or
resistance - Force, threat or fear of
force - Asleep or unconscious
- Affected by alcohol or
drugs - Intellectual, mental or
physical impairment - Mistake as to identity
- Mistake as to nature and
quality of act
What elements need to be present to be guilty of attempted sexual violation?
- Intend to commit the
offence - Take a real and
substantial step towards
achieving that aim
Can a child consent to sexual activity?
Unless in extremely rare circumstances it is not reasonable for an adult to believe a child was consenting to sexual activity.
Even in the unlikely event that the child’s consent is sufficient to provide a defence to sexual violation, the consent is no defence to sexual conduct with a child under 12.
R v Court
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of the complainant.
R v Dunn
Indecency must be judged in the light of time, place and circumstances. More than trifling and sufficient to “warrant the sanction of the law”.
Defences for Section 134:
What makes it harder to prove?
- They had taken
reasonable steps to
ascertain that the YP was
at least 16 - They had RGTB the YP
was at least 16 - The young person
consented
*The wider the age and
maturity gap between the
defendant and YP, the
harder it will be to
establish a defence
R v Leeson
The definition of indecent assault..is an assault accompanied with circumstances of indecency
What must prosecution prove for ‘indecent assault’?
- The defendant
intentionally assaulted - The circumstances
accompanying the assault
were indecent - The defendant intended
the conduct that a
reasonable person would
find indecent
Timing of complaints for ASA:
- Acute (Reported within
seven days) - Non-acute (7 days - 6
months) - Historic (over 6 months)
Note: this does not determine the level of risk or urgency in
individual circumstances.
Meaning of ‘immediate family’ for VRA?
Means a member of the victim’s family or other culturally recognised family group,
who is in a close relationship with the victim at the time of the offence.
- spouse, civil union partner, or de facto partner; or
- child or step-child
- brother or sister or step-brother or step-sister
- parent or step-parent
- grandparent
Section 51 VRA: Return of property held as evidence:
1) return it to the person
as soon as practicable after they no longer need to hold it for those purposes.
2) does not apply if the person advises that
agency that they do not want the property returned
What is the primary and secondary objective in the medical forensic exam?
Primary:
Physical, sexual, mental health and safety of the victim (well being and safety)
Secondary:
To collect trace evidence
