Definitions Flashcards
Sexual violation
Offence is covered in section 128B, Crimes Act 1961
Sexual violation is the act of a person who -
(a) rapes another person, or
(b) has unlawful sexual connection with another person
Mens rea - sexual violation
(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
Actus rea - sexual violation
(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
Section 128(4), Crimes Act 1961 (No legal spousal defence)
A spouse who sexually violates their spouse has no legal defence due to the fact that the couple are legally married
Rape
defined in section 128(2), Crimes Act 1961
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
Unlawful sexual connection
defined in section 128(3), Crimes Act 1961
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
Sexual connection
(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)
Introduction into / penetration
Introduction to the slightest degree is enough to effect a connection
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)
Penis
Includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female or of indeterminate sex)
Continuation
Refers to situations where sexual activity is started consensually but consent is later withdrawn
Genuine medical purposes
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
Section 127, Crimes Act 1961
No presumption of age
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
Consent
A person’s conscious and voluntary agreement to something desired or proposed by another
Proving consent (unlawfulness)
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)
Reluctant consent
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
Force
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
Threat
Threat to use force against the victim or some other person
Fear
Victim must be afraid that force will be used against them or another person (even if force not actually used)
Consent - drugs / alcohol
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.
Consent - intellectual / mental / physical impairment
The question is whether the impairment was sufficiently severe so as to deprive the complainant of the capacity to give or withhold consent
Consent - mistaken identity
The complainant’s consent is nullified if it is based on the mistaken identity of the other person
Consent - nature and quality of act
Consent is nullified when the complainant was unaware of the true nature of the physical act to which they were agreeing
Consent - other fraudulent representations
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
Assault
(1) Intentionally
(2) Applies or attempts to apply force
(3) To the person of another
(4) Directly or indirectly
Mens rea - Assault with Intent to Commit Sexual Violation
(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
Two different intentions - Assault with Intent to Commit Sexual Violation
(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
Child
Person under the age of 12yrs (meaning 11yrs or younger)
Indecent act
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
Young person
Person under the age of 16yrs (meaning between 12-15yrs)
Consent - young person
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
Statutory defence to charge under s134 (sexual conduct with a young person under 16)
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
Non defences - young person Section 134A(2), Crimes Act 1961
(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
Prosecution must prove (3) - Indecent Assault
(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
