Definitions

Question 1

Sexual violation

Offence is covered in section 128B, Crimes Act 1961

Answer 1

Sexual violation is the act of a person who -

(a) rapes another person, or
(b) has unlawful sexual connection with another person

Question 2

Mens rea - sexual violation

Answer 2

(1) The defendant knew that they did not have the victim’s consent but acted anyway, or
(2) The defendant’s grounds for believing that the victim consented to the act were unreasonable

Question 3

Actus rea - sexual violation

Answer 3

(1) There was an intentional act by the offender involving sexual connection with the complainant, and
(2) The complainant did not consent to the sexual act

Question 4

Section 128(4), Crimes Act 1961
(No legal spousal defence)

Answer 4

A spouse who sexually violates their spouse has no legal defence due to the fact that the couple are legally married

Question 5

Rape

defined in section 128(2), Crimes Act 1961

Answer 5

Person A rapes person B if 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 6

Unlawful sexual connection

defined in section 128(3), Crimes Act 1961

Answer 6

Person A has unlawful sexual connection with person B if person A has sexual connection with person B -

(a) without person B’s consent to the connection, and
(b) without believing on reasonable grounds that person B consents to the connection

Question 7

Sexual connection

Answer 7

(a) Connection effected by the introduction into genitalia or anus of one person, otherwise than 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) the continuation of connection of a kind described in paragraph (a) or (b)

Question 8

Introduction into / penetration

Answer 8

Introduction to the slightest degree is enough to effect a connection

Question 9

Genitalia

Answer 9

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 10

Penis

Answer 10

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

Question 11

Continuation

Answer 11

Refers to situations where sexual activity is started consensually but consent is later withdrawn

Question 12

Genuine medical purposes

Answer 12

If the doctor penetrates the patient on the pretence of medical necessity, when it is actually for sexual gratification, it may amount to sexual violation

Question 13

Section 127, Crimes Act 1961

No presumption of age

Answer 13

There is no presumption of law that a person is incapable of sexual connection because of his or her age

Any person of any age is capable of being involved in sexual connection

Question 14

Consent

Answer 14

A person’s conscious and voluntary agreement to something desired or proposed by another

Question 15

Proving consent (unlawfulness)

Answer 15

Subjective / objective test. Crown must prove:

(a) The complainant did not consent to the sexual act (subjective test), and
(b) The offender did not believe the complainant was consenting (subjective test) OR if he did believe she was consenting, the grounds for such a belief were not reasonable (objective test)

Question 16

Reluctant consent

Answer 16

If the consent is given, provided it is without fear of the application of force or the result of actual or threatened force, then the act of sexual connection would not be rape

Question 17

Force

Answer 17

Force that is intended or sufficient to cause bodily harm would normally negate a claim that consent had been given. A lesser degree of force would be accepted if it caused the victim to submit or acquiesce to the act

Question 18

Threat

Answer 18

Threat to use force against the victim or some other person

Question 19

Fear

Answer 19

Victim must be afraid that force will be used against them or another person (even if force not actually used)

Question 20

Consent - drugs / alcohol

Answer 20

Consent is not invalid simply because the person is intoxicated.
The question is whether they were affected to such an extent that they were incapable of understanding the situation and giving rational or reasoned consent.

Question 21

Consent - intellectual / mental / physical impairment

Answer 21

The question is whether the impairment was sufficiently severe so as to deprive the complainant of the capacity to give or withhold consent

Question 22

Consent - mistaken identity

Answer 22

The complainant’s consent is nullified if it is based on the mistaken identity of the other person

Question 23

Consent - nature and quality of act

Answer 23

Consent is nullified when the complainant was unaware of the true nature of the physical act to which they were agreeing

Question 24

Consent - other fraudulent representations

Answer 24

Any fraudulent representation that makes the complainant become mistaken about something other than identity or the nature or quality of the act will NOT affect the fact that consent was given

Question 25

Assault

Answer 25

(1) Intentionally
(2) Applies or attempts to apply force
(3) To the person of another
(4) Directly or indirectly

Question 26

Mens rea - Assault with Intent to Commit Sexual Violation

Answer 26

(1) Defendant intended to have sexual connection with the complainant
(2) The complainant did not consent
(3) Defendant did not believe on reasonable grounds that the complainant was consenting

Question 27

Two different intentions - Assault with Intent to Commit Sexual Violation

Answer 27

(1) In the hope that the complainant will then change their mind and consent to the act
(2) Intending to commit sexual violation regardless of whether the complainant changes their mind

You must show a connection (or determination of the offender) between the assault and attempt to commit sexual violation

Question 28

Child

Answer 28

Person under the age of 12yrs (meaning 11yrs or younger)

Question 29

Indecent act

Answer 29

An act accompanied by circumstances of indecency.
Indecency involves an act that has sexual connotations and involves conduct directed at a person that is offensive to public moral values

Question 30

Young person

Answer 30

Person under the age of 16yrs (meaning between 12-15yrs)

Question 31

Consent - young person

Answer 31

In some cases young people may be capable of giving legal consent to sexual activity which is sufficient to provide a defence to a charge of sexual violation

Question 32

Statutory defence to charge under s134 (sexual conduct with a young person under 16)

Answer 32

It is a defence to a charge under s134 if the person charged proves that:

(1) They had taken reasonable steps to ascertain that the young person was of or over the age of 16yrs, and
(2) At the time of the sexual activity, they believed on reasonable grounds that the person was of or over 16yrs, and
(3) The young person consented

Question 33

Non defences - young person
Section 134A(2), Crimes Act 1961

Answer 33

(a) It is not a defence that the young person concerned consented
(b) It is not a defence that the person charged believed that the young person concerned was of or over the age of 16yrs

Question 34

Prosecution must prove (3) - Indecent Assault

Answer 34

(1) Defendant intentionally assaulted the complainant
(2) The circumstances of the assault were indecent
(3) The defendant intended the conduct that a reasonable person would find indecent

If issue of consent is raised, must also prove:

(1) Complainant did not consent to the assault, and
(2) The defendant did not honestly believe that the complainant was consenting