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Sexual Offences Module > Legislation definitions etc > Flashcards

Legislation definitions etc Flashcards

1
Q

What must be proved in sexual violation cases?

A

Must prove beyond reasonable doubt:

  • There was an intentional act by the offender involving sexual connection with the complainant and,
  • the complainant did not consent to the sexual act and,
  • the offender did not believe that the complainant was consenting or
  • if the offender did believe the complainant was consenting, the grounds for such a belief were unreasonable.

Any investigation must prove:

  • 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
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2
Q

Is there a defence for spouses?

A

No. Spouse that sexually violates their spouse has no legal defence due to the fact that the couple are legally married. (before 1986 a man may have had such a defence)

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3
Q

Definition and section of rape

A

S128(2), CA 1961

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

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4
Q

Definition and section of unlawful sexual connection

A

S128(3), CA 1961

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

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5
Q

Definition of sexual connection

A

S2, CA 1961

Sexual connection means:

a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of
- a part of the body of another person or
- an object held or manipulated by another person

b) connection between the mouth and tongue of one person and a part of another persons genitalia or anus, or
c) the continuation of connection of a kind described in paragraph a or b.

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6
Q

What degree of penetration is sufficient?

A

S2, CA 1961

1A) introduction to the slightest degree is enough to effect a connection.

Extent of the penetration is not relevant, any degree of penetration, no matter how slight or fleeting, is sufficient.

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7
Q

How can penetration be proven?

A
  • the complainants evidence
  • medical exam, including physical injuries and DNA evidence
  • Defendants admissions
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8
Q

Define genitalia

A

S2, CA 1961

Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female, or of indeterminate sex)

The genitals or genitalia include the penis and testicles of a male and the vulva and vagina of a female.

R v Koroheke relates

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9
Q

Define penis

A

S2, CA 1961

Penis includes a surgically constructed or reconstructed organ analogous to naturally occurring penis (whether the person concerned is male, female, or of indeterminate sex)

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10
Q

Is anus defined as genitalia

A

No it is not included in the definition of genitalia, therefore non-consensual penile penetration of the anus is not rape

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11
Q

Explain objects held or manipulated

A

Anything other than a part of the body, used by the offender to penetrate the complainants genitalia or anus, eg vibrator, deodorant bottle or other hand held objects

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12
Q

Penetration for medical purposes

A

Some medical procedures involve penetration of patients genitalia or anus by a doctor. Excluded from definition of sexual connection if it is done for genuine medical purposes.

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13
Q

Continuation

A

There is an obligation on the person to stop the sexual activity if consent is withdrawn

R v Kaitamaki relates

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14
Q

Is a person of any age capable of sexual connection?

A

S127, CA 1961
Yes, there is no presumption because of age that someone is incapable of sexual connection. It is not a defence to say they were too young or too old for sexual connection.

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15
Q

What is consent?

A

Consent is a persons conscious and voluntary agreement to something desired or proposed by another.

R v Cox relates

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16
Q

What is reluctant consent?

A

A true consent may be given reluctantly or hesitantly and may be regretted afterwards, but if the consent is given without fear of force etc, the act of sexual connection would not be rape.

17
Q

Who has to prove consent?

A

The crown must prove that the complainant was not consenting to the sexual act at the time it occurred. Defendant does not have to prove it

18
Q

Recklessness as to consent

A

Recklessness as to whether the complainant is consenting or not is not consistent with having a reasonable belief in consent.

19
Q

When is consent relevant?

A

At the time the act actually took place. Complainants behaviour and attitude before or after the act itself may be relevant to that issue, but it is not decisive.

20
Q

What does Section 128A outline in terms of apparent consent not being valid?

A
  • Where a person submits to sexual activity as a result of fear or force
  • is unaware because they are asleep or unconscious (even with prior consent).
  • they do not protest or offer physical resistance to the sexual activity
  • affected by alcohol or drugs to such an extent that they cannot consent or refuse to consent to the activity (has to understand situation and be capable of making up their mind)
  • If they are mistaken who the person is
21
Q

Is age relevant in S128 offences?

A

No, however age is relevant in sections 132 and 134

22
Q

What are the two attempted sexual violation charges? And what section?

A

Section 129.

(1) attempted sexual violation
(2) assault with intent to commit sexual violation

23
Q

How do you distinguish between the two attempted sexual violation charges?

A
  • 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.
24
Q

What is the circumstantial evidence from which an offenders intent can be inferred?

A
  • Offenders actions and words before during and after the event.
  • The surrounding circumstances
  • The nature of the act itself
25
Q

Definition of assault

A

Section 2, Crimes Act 1961

assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose

26
Q

Two intentions with assault with intent to commit sexual violation

A
  • in the hope that the complainant will then change their mind and consent to the act
  • intending to commit rape or sexual connection regardless of whether the complainant changes their mind
27
Q

Can a child under 12 give consent?

A

There is no statutory cut off age below which a child is deemed capable of consenting. All depends on circumstances of the case. It would only be in exceptional and rare circumstances that a child under 12 could give legal consent (Cox v R)

28
Q

How must you prove the age of the complainant?

A

Using the best evidence available to do so. Generally involves producing the complainants birth certificate in conjunction with independent evidence that identifies the complainant as the person named in the certificate.

Ideally the independent evidence will be that of a parent

29
Q

What is an indecent act (child and young person)?

A

An act accompanied by circumstances of indecency.

If the act is done with the consent of the child, it is immaterial whether:

  • the offender does the act on the child
  • the child does the act on the offender
  • the act is mutual

Where the act is non consensual, or where the childs consent is not legally valid, the offender has committed an indecent assault.

30
Q

When is sexual conduct with a young person under 16 used?

A

Section 134 covers cases where a young person has given legal consent to the sexual activity, which is a defence under section 128 (sexual violation)

31
Q

What is the defence under section 134?

A

If the defendant proves that before the time of the sexual activity:

  • they had taken reasonable steps to ascertain that the young person was of or over the age of 16, and
  • at the time of the sexual activity they believed on reasonable grounds that the young person was of or over the age of 16, and
  • the young person consented
32
Q

Difference in consent with sexual violation and indecent assault cases?

A

Sexual violation - honest belief in consent is not valid unless there are reasonable grounds for that belief
Indecent assault - honest belief alone is sufficient even if it is not reasonable

33
Q

Definition of incest

A

Section 130

(1) (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

34
Q

Who are considered as parents in incest cases?

A

If adopted, birth parents remain parents, and the adoptive parents are also considered parents.

Step parents and step children are not parent and child. May come under sexual conduct with dependant family member

35
Q

Definition of dependant family member

A

If the other person has power or authority over him or her and is,

  • his or her parent, step-parent, foster parent, guardian, uncle/aunt
  • a parent, step-parent, or foster parent of a person described above
  • a child of his or her parent or step-parent
  • the spouse or de facto partner of any of the described above

Aunt and uncle include half sister/brother of parents

Foster and step parent include former

36
Q

When is the offence sexual exploitation of person with significant impairment complete?

A
  • has sexual connection with the impaired person knowing that the impaired person is a person with a significant impairment and
  • has obtained the impaired persons acquiescence in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment.
37
Q

Sexual grooming, what actions must offender have taken?

A

having met or communicated with a person under the age of 16 years, they take one of the following steps,

  • intentionally meets the young person
  • travels with the intention of meeting the young person
  • arranges for or persuades the young person to travel with the intention of meeting him or her,

At the time of taking the action they intend to commit offence against them

38
Q

Indecency

A

An act that is indecent has sexual connotations and involves conduct directed a person that is offensive to public moral values

R v Court relates

39
Q

Person

A

Is generally accepted by judicial notice or proved by circumstantial evidence

Sexual Offences Module (6 decks)

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