Important To Know Flashcards
Crown must prove beyond reasonable doubt that.
- there was an intentional act by the offender involving sexual connection with the complainant, and
- the complaint did not consent to the sexual act, and
- the offender did not believe the complaint was consenting, or
- if the offender did believe the complainant was consenting, the grounds of such belief were reasonable
Any investigation must prove that either:
- the defendant knew they did not have the victims consent but acted anyway (the offenders mens rea), or
- the defendants grounds for believing that the victim consented to the act were unreasonable.
Proof of penetration may be established by:
- the complainant evidence
- medical examination, including physical injuries and DNA evidence
- the defendants admissions
Offence is sufficiently proved by …
Penetration of the vulva by the penis … proof of penetration of the vagina is not required.
Crimes Act 1961, Section 127
No presumption because of age
There is no presumption of law that a person is incapable of sexual connection because of his/her age.
R V COOK
Held that to be effective, consent must be “real, genuine or true consent, and that it may be conveyed by words or conduct or both.”
Subjective test - absence of consent
Whether or not the complainant was consenting is a subjective test from the complaints point of view.
What was the complainant thinking at the time?
The Crown must prove that the complainant was not consenting to the sexual activity at the time it occurred. It is not on the defendant to prove that he/she was consenting.
Subjective test - belief in consent
Is whether or not the defendant believed he/she was consenting at the time.
What was the defendant thinking at the time?
Objective test - reasonable grounds for belief in consent
What would a reasonable person have believed of placed in the same position as the defendant?
