GENERAL Flashcards

1
Q

Sexual Violation:

What are the two matters a court may consider when deciding whether to impose imprisonment?

What section is this found in?

A

S128B(3)

(a) particular circumstances of the person convicted
(b) particular circumstances of the offence

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2
Q

How is Penetration proved?

A

May be established by:
The complainant’s evidence
Medical examination (injuries and DNA)
The defendant’s admissions

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3
Q

Is Anus included in the definition of genitalia?

A

No
If penile penetration of the anus occurs then this would not be rape. The appropriate charge would be 128(1)(b).

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4
Q

Subjective test for Absence of Consent:
Who holds the burden of proof?
Must the Crown prove that the complainant was not consenting, or must the defendant prove they were?

A

The burden falls on the Crown to prove the complaint was not consenting.

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5
Q

Subjective test for belief in consent:
(What was the defendant thinking at the time).

If he believed the complainant was consenting then what test must be applied?

A

The objective test must be applied to determine whether there was a reasonable basis for his belief.

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6
Q

Is Recklessness as to whether or not the complainant is consenting regarded as having a Reasonable Belief in consent?

A

No.
Recklessness is not consistent with having a reasonable belief.

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7
Q

When is consent relevant?
(A what point in time does it become relevant)

A

At the time the act took place

R v Adams.

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8
Q

List 5 conditions outlined in C61 s128A

A

Consent can not be considered based on a person’s:
(1) lack of resistance or protest
(2) submission to force or fear
(3) being asleep or unconscious
(4) intoxicated
(5) mental or physical impairment
(6) mistaken identity
(7) is mistaken about the nature and quality

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9
Q

Can a lack of protest or objection be relevant to forming a reasonable belief in consent?

A

Yes.
It can be relevant as a contributor to the belief but it can’t form the sole basis for such a belief. Section 128A(1) specifically addresses this issue and stipulates that a lack of protest or resistance is not regarded as consent.

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10
Q

If a woman said to a man that she consents to him going ahead and having sex with her once she falls asleep, and he does so, then she makes a complaint afterwards, can he say he had her consent?

A

No.
What is said or done before the act is not the decisive factor for consent. The decisive factor is whether there was consent at the time the act took place.
Also, s128A(3) stipulates that a sleeping person can not give consent.

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11
Q

Is it possible for an intoxicated person to give valid consent?

A

Yes, it is possible.
But, the degree of intoxication is relevant. For example, if the person is intoxicated to the degree where they were incapable of giving a free and rationed consent, then the consent would not be valid.

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12
Q

Give an example of s128A(1)

A

Failure to resist or object.

E.g.
A person remains while being subjected to sexual connection by another person. They don’t know what to do. Their lack of resistance is not consent.

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13
Q

Give an example of 128A(2)
(Force, threat, or fear)

A

Submitting to rape while a knife is held to their throat.

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14
Q

128A(3) a person does not consent if…

A

They’re asleep or unconscious.

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15
Q

128A(4) a person does not consent if…

A

They’re so affected by alcohol to the point they can not give true consent.

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16
Q

128A(5) a person does not give consent if…

A

Mentally or physically impaired to a degree that they are unable to

17
Q

128A(6) what does this subsection relate to and give an example

A

Mistake as to identity.

The person being subjected to the sexual connection has consented because they mistook the offender to be someone that they intended to give consent to.

E.g. a man slips into bed with a woman who believed she was having sex with moments earlier and believed the same man came back.

18
Q

For an ATTEMPT to occur, is it necessary that it was possible commit the offence in the first place?

A

No

19
Q

What is the Objective Test for Indecency?

A

“the test for indecency is whether the conduct “offend[s] against a reasonable and recognised standard of decency…”

20
Q

Although lack of consent is a common factor to both the offence of Sexual Violation and the offence of Indecent Assault, the issue of belief in consent differs between the two offences. What is that difference?

A

128 Sexual Violation - requires an honest belief AND reasonable grounds for that belief.

135 Indecent Assault - requires an honest belief, BUT does not require any reasonable grounds for that belief.

21
Q

129A(5)

This Subsection deals with situations where consent has been forced from the victim by threat. What are the 3 categories of threat given:

A

(a) To do a non-violent criminal act

(b) To accuse or disclose something (blackmail)

(c) Occupational or Commercial threats

22
Q

Can a YP under 12 give consent?

A

Yes. But that may not be a defence to the charge. Also, it may be a question for the court whether the YP had give fully informed consent and knew the consequences of their decision.

23
Q

What 2 offences discussed in this module, specify that the offender needs to be of or over the age of 18 years?

A

131 Sexual Conduct With a Dependent Family Member

195A Failure to Protect a Child or Vulnerable Adult

24
Q

128A Not consent - Circumstances

128A(2) is split into 3 circumstances, what are they:

A

Force
Threat
Fear

25
Q

List 4 things a victim should refrain from doing before a medical examination?

A

(1) Eating or drinking
(2) Going to the toilet
(3) washing or showering
(4) Biting nails

26
Q

List 4 things to cover with the victim before the medical examination?

A

(1) It will be conducted by a specially trained medical practitioner
(2) benefits to the victims health
(3) benefits to the investigation
(4) the likely time frame to complete the examination

27
Q

What is CALM TEA?

A

CONDUCT dealings in a sensitive manner
ACCEPT they’re telling the truth
LISTEN
MEDICAL ATTENTION
TREAT with courteousy
EXPLAIN the process
ADVISE of counseling services

28
Q

What are 3 areas to consider when determining the threshold for a CPP referral?

A

(1) Action of the abuse
(2) Injury
(3) Circumstantial factors of the case

29
Q

List 4 police responsibilities to victims and their rights:

A

(1) All victim contacts must be recorded
(2) Investigation progress must be given within 21 days
(3) Vicrim must be informed of investigation outcome
(4) Inform about VNR if applicable
(5) Return any property

30
Q

Define Child Abuse?

A

Harm (physical, sexual, or emotional)
Depravation
ill treatment
Neglect
Abuse

31
Q

What are Child Centred Timeframes?

A

Timeframes that are relevant to the child’s age and cognitive development.