Definitions / discussion

Question 1

SEXUAL VIOLATION s128 Crimes Act 1961

Answer 1

(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

RAPE s128(2) Crimes Act 1961

Answer 2

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 3

PENETRATION s2(1A), Crimes Act 1961

Answer 3

Introduction and penetration have the same meaning,

Introduction to the slightest degree is enough to effect a connection.

Question 4

PENETRATION

Answer 4

Proof of penetration is required although the slightest degree of penetration is sufficient. Proof may be provided by a medical examination, the complainant’s testimony or the accused admissions

Question 5

GENETALIA

Answer 5

The genitalia or genitals (literally: organs of generation) include the penis and testicles of a male, and the vagina and vulva of a female

Question 6

GENETALIA s2 Crimes Act 1961

Answer 6

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

PENIS

Answer 7

The male organ of reproduction

Question 8

PENIS s2 Crimes Act 1961

Answer 8

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).

Question 9

MATTERS NOT CONSTITUTING CONSENT s128A Crimes Act 1961

Answer 9

• not protesting or offering physical resistance to use of force, threats of force to self or others, or fear of force to self or others
• asleep or unconscious
• so affected by drugs/alcohol they cannot consent
• so affected by mental or physical impairment they cannot consent
• mistaken ID
• mistaken as to nature and quality of the act

Question 10

REASONABLE GROUNDS

Answer 10

The establishing of Reasonable grounds is a three step process

Subjective Test (1)
Whether or not the complainant was consenting is a subjective test from the complainant’s point of view - ie, what was the complainant thinking at the time? Is she consenting?

Subjective Test (2)
The second subjective Test is if she wasn’t consenting did the offender believe she was consenting – what was the offender thinking at the time? Did he believe she was consenting?

Objective Test -
If the offender believed the complainant was consenting, the third step is an objective test as to what a reasonable person placed in the same position as the defendant would have believed?

Question 11

BELIEF R v GUTUAMA

Answer 11

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.”

Question 12

AGE Q v FORREST and FORREST

Answer 12

The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age”.

Question 13

UNLAWFUL SEXUAL CONNECTION s2 Crimes Act 1961

Answer 13

Person A has unlawful sexual connection with Person B if Person A has sexual connection with Person B -
• without person B’s consent to the connection,
and
• without believing on reasonable grounds that person B consents to the connection

Question 14

SEXUAL CONNECTION s128(3) Crimes Act 1961

Answer 14

(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 paragraph (a) or paragraph (b)

Question 15

INTRODUCTION

Answer 15

Introduction and penetration have the same meaning

Question 16

PARTS of the BODY

Answer 16

Connection can be completed by ‘any part of the body’. This usually refers to the hands or fingers used to penetrate the genitalia or anus.

Question 17

OBJECTS

Answer 17

Any object that can be held or manipulated by the other person - eg. bottle or vibrator

Question 18

CONNECTION

Answer 18

In the case of oral sexual connection it is not necessary for there to be penetration; any touching of a person’s genitalia or anus with another person’s mouth or tongue is sufficient.

Question 19

YOUNG PERSON s134(6)(a) Crimes Act 1961

Answer 19

Young person means a person under the age of 16 years

Question 20

CHILD s132(6)(a) Crimes Act 1961

Answer 20

Child means a person under the age of 12 years

Question 21

INDECENT ACT

R v COURT

Answer 21

Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant].”

Question 22

INDECENT ASSAULT R v LEESON

Answer 22

The definition of “indecent assault” … is an assault accompanied with circumstances of indecency…

Question 23

INTENT

Answer 23

A person does something “intentionally” if they mean to do it; they desire a specific result and act with the aim or purpose of achieving it.