General Knowledge Flashcards
Section 128A - Matters that do not constitute consent:
(1) Does not protest or offer physical resistance
(2) No consent by:
(a) Force applied to him, her or some other person
(b) Threat of force to him, her or some other person
(c) Fear of application to him, her or some other person
(3) Asleep or unconscious
(4) So affect by alcohol or drugs
(5) Intellectual, mental, physical condition or impairment
(6) Mistaken as the identity of the person
(7) Mistaken about the nature or quality of the act
Consent: The crown must prove – 3 part test
Subjective test one: Absence of consent - What was the complaint thinking at the time.
Subjective test two: Belief in consent – What was the defendant thinking at the time.
Objective test three: Reasonable grounds for belief in consent – What would a reasonable person believe in the same position as the defendants.
Section 130 Incest
(a) It is between 2 people whose relationship is that of parent and child, siblings, half siblings, or grandparent and grandchild; and (includes adoptive parents)
(b) The person charged knows of the relationship.
Section 134 A - Defense to charge:
(1) (a) Made reasonable steps to ascertain their age as over 16 before the act, and
(b) Believed their age as over 16 at the time of the act, and
(c) The young person consented
(2) (a) Not a defence solely, if the young person consented
(b) Not a defense solely if they believed the young person was over 16 years
Section 135 Indecent Assault: The Crown must prove that:
The defendant intentionally assaulted the complainant
Circumstances accompanying the assault where indecent
The defendant intended the conduct a reasonable person would find indecent.
Indecent Act on a child:
Immaterial whether: the offender does the act on the child, the child does the act on the offender or it is mutual.
Section 132 Sexual conduct with child under 12
No Defense
(4) No defense if offender thought child was over 12
(5) No defense is child consented
Section 128B Sexual violation:
(1) 20 years imprisonment –
(2) Must be sentenced to prison unless court thinks they should not.
(3) Matters include:
(a) Particular circumstance of person convicted, and
(b) Particular circumstance of the offence, nature and conduct constituting it.
In proving consent was not present the Crown must prove:
Victim did not consent
Victims consent was not valid
Defendant did not believe on reasonable grounds that victim was consenting
In all cases of sexual violation the Crown must prove:
The act was intentional involving sexual connection, and
Complaint did not consent to the act, and
Offender did not believe in consent, or
The grounds for a belief in consent were not reasonable
Section 129 (1) Attempted Sexual Connection: The Crown must prove
Defendant intended to have sexual connection with the complainant, and
Complainant did not consent, and
Defendant did not believe on reasonable grounds that victim was consenting
Section 129A Sexual conduct with induced consent by certain threats
(5) Kind of threat referred to in (3) & (4)
(a) A threat by the person, or another person will commit an offence that
(i) is punishable by imprisonment
(ii) does not involve the actual or threatened application of force to any person
(b) or will make an accusation or disclose (true or false) about misconduct by any person (living or dead) to damage seriously the reputation of the person
(c) make improper use, to the detriment of the person consenting, of a power or authority arising out of –
(i) an occupational or vocational position held by that person making the threat
(ii) Commercial relationship existing between the person making the threat and the person consenting.
Section 195A: Failure to protect child or vulnerable adult
Mens rea - Actus Reus
Liable to imprisonment for 10 years who,
(a) knows that the victim is at risk of death, grievous bodily harm, or sexual assault as the result of—
(i) act ; or
(ii) omission by another person
(b) fails to take reasonable steps to protect the victim from that risk.
