Definitions

Question 1

Genitalia

Answer 1

Includes a surgicall constructed or reconstructed organ analogous to natrually occurring male or female genitalia (whether the person concerned is male, female, or of indeterminate sex)

Question 2

Penis

Answer 2

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 3

Invalid Consent

Answer 3

Crimes Act 1961, Section 128A
Allowing sexual activity does not amount to consent in some circumstances

• no protest or physical resistance to the activity
• allows the activity because of force applied to him or her or some other person, or the threat (express or implied) of the application of force to him or her or some other person, or the fear of application of force to him or her or some other person.
• while he or she is asleep or unconscious
• 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
• 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 to consent to the activity
• if he or she allows the sexual activity because he or she is mistaken about who the other person is
• if he or she allows the act because he or she is mistaken about its nature and quality

Question 4

Sexual violation proof

Answer 4

In all cases of sexual violation the Crown must prove beyond reasonable doubt that:
- 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 5

Rape

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

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.

Sexual connection means
(a) connection effected by the introduction into the 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 (a) or (b).

Question 7

Proving penetration

Answer 7

Proof of penetration established by:
- the complianant’s evidence
- medical examination including physical injuries and DNA evidence
- the defendant’s admissions.

Question 8

Indecency

Answer 8

An act that is “indecent” has sexual connotations and involves conduct directed at a person that is offensive to public moral values.

Indecency must be judged in light of the time, place and circumstances. It must be something more than trifling, and be sufficient to “warrant the sanction of the law”.

Question 9

Indecent assault proof

Answer 9

In these cases the prosecution must prove that:
- the defendant intentionally assaulted the complainant
- the circumstances accompanying the assault were indecent
- the defendant intended the conduct that a reasonable person would find indecent.