Legislation Flashcards
Section 128A, Crimes Act 1961
Allowing sexual activity does not amount to consent in some circumstances
(1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.
(2) A person does not consent to sexual activity if he or she allows the activity because of—
(a) force applied to him or her or some other person; or
(b) the threat (express or implied) of the application of force to him or her or some
other person; or
(c) the fear of the application of force to him or her or some other person.
(3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.
(4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
(5) A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
(6) One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.
(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.
(8) This section does not limit the circumstances in which a person does not consent to sexual activity.
(9) For the purposes of this section,—
allows includes acquiesces in, submits to, participates in, and undertakes sexual activity, in relation to a person, means—
(a) sexual connection with the person; or
(b) the doing on the person of an indecent act that, without the person’s consent,
would be an indecent assault of the person.
Sexual violation by rape
Section 128, Crimes Act 1961 Sexual violation defined
(1) Sexual violation is the act of a person who—a) rapes another person
Section 128(2) provides a definition specific to rape.
Section 128, Crimes Act 1961 Sexual violation defined
(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.
Sexual violation by unlawful sexual connection
Section 128, Crimes Act 1961 Sexual violation defined
(1) Sexual violation is the act of a person who—
(b) has unlawful sexual connection with another person
Section 128, Crimes Act 1961 Sexual violation defined
(3) Person A has unlawful sexual connection with person B if person A has sexual connection with person B—
(a) without person B’s consent to the connection; and
(b) without believing on reasonable grounds that person B consents to the
connection.
Section 129, Crimes Act 1961
Attempted sexual violation and assault with intent to commit sexual violation
(1)
Every one who attempts to commit sexual violation is liable to imprisonment for a term not exceeding 10 years.
(2)Every one who assaults another person with intent to commit sexual violation of the other person is liable to imprisonment for a term not exceeding 10 years.
Two types of intent
Deliberate Act:
“Intent” means that act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.
Intent to produce a result:
The second type of intent is an intent to produce a specific result. In this context result means “aim, object, or purpose”. Simester and Brookbanks 15
Proving intent
Circumstantial evidence from which an offender’s intent may be inferred can include:
• the offender’s actions and words before, during and after the event
• the surrounding circumstances
• the nature of the act itself.
Sexual Conduct with a Child Under 12
(1) Every one who has sexual connection with a child is liable to imprisonment for a term not exceeding 14 years.
(2) Every one who attempts to have sexual connection with a child is liable to imprisonment for a term not exceeding 10 years.
(3) Every one who does an indecent act on a child is liable to imprisonment for a term not exceeding 10 years.
(4) It is not a defence to a charge under this section that the person charged, believed that the child was of or over the age of 12 years.
(5) It is not a defence to a charge under this section that the child consented.
(6) In this section,—
(a) child means a person under the age of 12 years; and
(b) doing an indecent act on a child includes indecently assaulting the child.
Sexual Conduct with a Young Person Under 16
Section 134, Crimes Act 1961
Sexual conduct with young person under 16
(1) Every one who has sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.
(2) Every one who attempts to have sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.
(3) Every one who does an indecent act on a young person is liable to imprisonment for a term not exceeding 7 years.
(4) No person can be convicted of a charge under this section if he or she was married to the young person concerned at the time of the sexual connection or indecent act concerned.
(5) The young person in respect of whom an offence against this section was committed cannot be charged as a party to the offence if the person who committed the offence was of or over the age of 16 years when the offence was committed.
(6) In this section,—
(a) young person means a person under the age of 16 years; and
(b) doing an indecent act on a young person includes indecently assaulting the
young person.
Defence to charge under section 134
Section 134A, Crimes Act 1961 Defence to charge under section 134
(1) It is a defence to a charge under section 134 if the person charged proves that,—
(a) before the time of the act concerned, he or she had taken reasonable steps to
find out whether the young person concerned was of or over the age of 16
years; and
(b) at the time of the act concerned, he or she believed on reasonable grounds that
the young person was of or over the age of 16 years; and
(c) the young person consented.
(2) Except to the extent provided in subsection (1),—
(a) it is not a defence to a charge under section 134 that the young person
concerned consented; and
(b) it is not a defence to a charge under section 134 that the person charged
believed that the young person concerned was of or over the age of 16 years
Section 135, Crimes Act 1961 Indecent assault
Every one is liable to imprisonment for a term not exceeding 7 years who indecently assaults another person.
Section 130, Crimes Act 1961 Incest
(1) Sexual connection is incest if—
(a) it is between 2 people whose relationship is that of parent and child, siblings,
half-siblings, or grandparent and grandchild; and
(b) the person charged knows of the relationship.
(2) Every one of or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 10 years.
The sexual connection is gender neutral and allows for same-sex offending to be prosecuted.
Consent is no defence to a charge under this section. The sexual connection in incest is carried out with the consent of both parties. If it is not, then a charge of sexual violation is appropriate
