General Offence Knowledge

Question 1

In cases of sexual violation the Crown must prove BRD that: (3)

Answer 1

1. There was an intentional act involving sexual connection with the complainant
2. The complainant did not consent to
3. The offender did not believe the complainant was consenting/or if they did, the grounds for such belief were unreasonable

Question 2

According to s128(4) it is no legal defence if you’re ______

Answer 2

A spouse/married

A spouse who sexually violates their spouse has no legal defence

Question 3

Proof of penetration may be established by: (3)

Answer 3

• the complainants evidence
• medical examination including physical injuries
• the defendants admissions

Question 4

What is meant by the
Section 127: No Presumption because of age

Answer 4

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 in a legal sense, of being involved in sexual connection

So it would not be a defence to say that either party was too young or too old

Question 5

List all the Matters not constituting consent under 128A (6)

Answer 5

• Alcohol/drugs
• asleep/unconscious
• intellectual/mental/physical disability
• force/threat of force
• mistaken ID
• mistaken of nature/quality

Question 6

Regarding intellectually/mentally/physically impaired persons, how do you know if their impairment is severe enough make consent invalid?

And what is an alternative charge?

Answer 6

Is the impairment so severe so as to deprive the complainant of the capacity to give or withhold consent?

If the threshold for sexual violation has not been met, but the defendant still took advantage of their vulnerability, consider a charge of:
s138- Sexual Exploitation of a person with significant impairment

Question 7

Mistaken ID or Mistaken or nature/quality refers to a mistake made by the _________

Answer 7

Complainant -not a mistake by the defendant

Question 8

Section 129
(1) Attempted sexual violation
(2) Assault with intent to commit sexual violation

What’s the difference?

Answer 8

Both apply to where the offender intends to sexual violate and takes steps toward doing so but full offence is not committed.

• an attempt to commit sexual violation does not necessarily involve an assault
• an assault with intent to commit sexual violation may not be sufficiently proximate to the full offence to constitute an attempt

Both are 10yrs imprisonment

Question 9

To be guilty of an attempt to commit any offence the person must both
- _______________ and
- _______________

Answer 9

• intend to commit the offence
• take a real and substantial step towards achieving that aim

Question 10

Proving intent:
Circumstantial evidence from which an offenders intent may be inferred can include…?(3)

Answer 10

• the offenders actions and words before during and after the event
• the surrounding circumstances
• the nature of the act itself

Question 11

For an Assault with intent to commit sexual violation, does the assault need to be of an indecent nature?

Answer 11

No! Provided it is done with the intention of and for the purpose of committing sexual violation

Question 12

If the offender assaults the victim in the hope that they’ll change their mind and consent to sex, what charge is appropriate?

Answer 12

Assault- or indecent assault if it’s indecent. They would not be liable for assault with intent to commit sexual violation because they didn’t have the intent to commit the full offence

Question 13

List the two main forms of sexual violation?

Answer 13

Rape
Unlawful sexual connection

Question 14

Discuss the penalty provisions for sexual violation in 128B?

Answer 14

It outlines that punishment for sexual violation is up to 20yrs imprisonment, imprisonment should always be imposed, unless special circumstances justify otherwise

Question 15

In negating consent, the Crown has to prove one of 3 things …what are they?

Answer 15

• the victim did not consent
• the victims consent was not valid (128A)
• the defendant did not believe on reasonable grounds that the victim was consenting

Question 16

How would you decide whether to charge under 128 (violation) or 132 (sexual conduct with a child)?

Answer 16

Distinction must be drawn between a child who is simply compliant and one truly consenting

Truly consenting (ie full understanding of the act- rare for an <12 yr old Cox v R) would be a reason for a charge under 132 as the element of consent is not met for 128.

It is also extremely rare that it would be reasonable for an adult to believe a child was consenting to sexual actuality anyway.

Under section 132 consent is no defence

Question 17

What section would sexual conduct with a 12 year old fall into?

Answer 17

134 Sexual Conduct with a YP<16

For 132 to apply the child must be under 12 years.

Question 18

It is up to the Crown to prove age

What case law applies here?

Answer 18

R v Forrest and Forrest

The best evidence possible in the circumstances should be adduced by the prosecution of the victims age

Question 19

For sexual conduct with a child charges, what if the defendant believed the child was over the age of 12?

Answer 19

Mistake as to age is no defence for section 132

Question 20

Section 132(3) relates to an indecent act on a child

Describe “indecent act”
Does it matter who does the act?

Answer 20

An act accompanied by circumstances of indecency

Doesn’t matter if
-the offender does the act on the child
-the child does the act on the offender
-the act is mutual

Question 21

Section 134 applies to victims of what age?

Answer 21

12-15 year olds
Sexual Conduct with a YP under 16yrs

Question 22

What charge would you use for sexual conduct of a child where you’re not 100% sure of their age?

Answer 22

While s134 is aimed at 12-15yr olds, it’s technically for anyone under 16, so it overlaps with s132.
So if age is in doubt, charges may be filed under both or just 134.

Question 23

What is the statutory defence to s134

Answer 23

S134A

If the defendant can prove that:

• they took reasonable steps to ascertain the young person was over the age of 16 AND
• at the time of the sex they believed on RGs that the young person was over 16 AND
• the young person consented

Question 24

R v Leeson defines Indecent Assailt as an assault accompanied by ____________?

Answer 24

Circumstances of indecency

Question 25

Can indecent assaults be committed accidentally?

Answer 25

No. The defendant must have intended to act indecently

The prosecution must prove
1. The def intentionally assaulted the C
2. The circumstances were indecent
3. The def intending the conduct that a reasonable person would find indecent

Question 26

Does an indecent assault have to be sexually motivated?

Answer 26

No. (Though they generally are)

Ex if a man assaults a woman by stripping off her clothes in public to embarrass her (rather than for sexual gratification) he still indecently assaults her because he did an act to affront the woman’s sexual modesty.

Question 27

Can you use “consent” as a defence to a charge of Indecent Assault?

Answer 27

Yes -for 16+ yr olds, under 135

Under 132 and 134 consent is no defence.

However, note that for consent to succeed as a defence to a violation, the belief in consent has to be reasonable. But for indecent assault, the defendant only has to prove they honestly believed the C was consenting -ie it doesn’t have to be reasonable.

Question 28

Section 129A covers:

Answer 28

Sexual conduct with consent induced by certain threats (14 yrs)

This makes it an offence to induce someone to commit sexual connection in response to an implied or explicit threat not involving force

Question 29

As per s130, sexual connection is incest if…

Answer 29

It is between 2 people who’s relationship is parent/child, siblings, half-siblings, grandparent/child
AND
the person charged knows of the relationship

Question 30

To be charged with incest you must be ____yrs or older

Answer 30

16

The penalty is 10yrs imprisonment

Question 31

Is consent a defence to incest?

Answer 31

No- sexual connection in incest is carried out with consent of both parties.

(If there was no consent, a sexual violation charge would be appropriate)

Question 32

What about step-parent and step-child. Could sexual connection between the two be incest?

Answer 32

No. This is not covered under s130

This would instead come under s131 (sexual conduct with a dependant family member) or sexual violation

Question 33

S131- ‘sexual conduct with a dependent family member’ covers a broad range of offending including (3)…?

Answer 33

Sexual connection
Attempted sexual connection
Indecent act

Question 34

Under s131 Sexual conduct with a dependent family member, the complainant can be male or female and up to the age of …?

Answer 34

18

Question 35

For s131A Sexual Conduct with a Dependent Family Member,

Police must prove that the defendant is in one of the specified roles AND …?

Answer 35

They had power or authority over the dependent person

Question 36

S131B relates to meeting a young person following sexual grooming. (7yrs)

It is directed at internet grooming and identifies and criminalises preparatory behaviour.

When is the offence “complete”?

Answer 36

When the parties meet, or the defendant travels/makes arrangements to meet the C (with the relevant intent)

Question 37

Subsection 1A, introduced to s131B Grooming offences, was introduced in 2012. What did this subsection change?

Answer 37

The offence now includes not just a YP but a constable pretending to be a YP<16.

Of course the Prosecution must prove that the offender believed the fake YP was real, and under 16.

Question 38

S138- Sexual exploitation of person with significant impairment (10yrs)
Makes it an offence to have sexual connection/attempt sexual connection/do an indecent act

On someone with a significant impairment.

How does the section describe “significant impairment”?

Answer 38

An intellectual, mental, or physical condition that affects a person to such an extent that it significantly impairs a person’s capacity to:

• understand the nature of sexual conduct
• understand decisions about sexual conduct
• foresee consequences of sexual conduct
• communicate decisions about sexual conduct