Questions - Sexual offences Flashcards
List the two main forms of sexual violation
Rape and unlawful sexual connection
What are the penalty provisions for rape and unlawful sexual connection?
20 years imprisonment, and imprisonment should always be imposed unless there are special circumstances.
Define genitalia
The external organs of reproduction in males and females. The organs of generation, includes surgically constructed organs.
In establishing that a sexual connection is unlawful the subjective/objective test the Crown must prove relating to consent is?
Subjective - The victim did not consent
Subjective - The accused did not believe the victim was consenting.
Objective - If the accused did believe the victim was consenting, that belief was unreasonable.
What two elements must be proved for a charge of assault with intent to commit sexual violation?
Assaulted the victim
With intent to commit sexual violation
What is the definition of consent?
A persons conscious and voluntary agreement to something desired or proposed by another.
“Consent must be full, voluntary, free and informed. Freely and voluntarily given by a person in a position to form a rational judgement” - COX
Define sexual connection
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 or
B) Connection between the mouth or 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.
What is the statutory defence for S134A - sexual conduct with a young person under 16 years?
-The person charged can show they took reasonable steps to establish the young person was aged 16 or over and
-The person charged believed on reasonable grounds that the young person was aged 16 or over and
-The young person consented to that sexual connection.
Define sexual conduct with a child under 12
- Sexual connection with a child
- Attempted sexual connection with a child
- Does an indecent act on a child
Can a 16 year old girl be charged with having consensual sex with a 14 year old boy?
Yes, she can be charged with sexual conduct with a young person under 16 years.
Define an indecent act
An act accompanied by circumstances of indecency
What are three things the Crown must prove in relation to an indecent assault?
- The defendant intentionally assaulted the complainant
- The circumstances accompanying the assault were indecent
- The defendants conduct was such that a reasonable person would find indecent.
When is the offence of sexual exploitation of a person with significant impairment complete?
A) If he or she has sexual connections with the impaired person knowing the person is impaired and
B) has obtained the impaired persons participation by taking advantage of the impairment.
When is the offence of sexual grooming complete?
When the offender intentionally meets the young person
When the accused travels or makes arrangements to meet with the relevant intent.
Section 128A - Invalid consent
1) Does not protest or offer physical resistance
2) Allows activity because of force applied, fear or threat of force applied
3) Asleep or unconscious
4) Affected by alcohol or drugs
5) Affected by intellectual, mental, physical condition or impairment
6) Mistaken identity
7) Mistaken about nature and quality
If a male has sex with his 18 year old home stay is there an offence?
No
Is it an offence for an adoptive parent to have sexual intercourse with his 18 year old daughter?
Yes, an adoptive parent is a parent therefore offence of incest.
What does S134(4) state in relation to marriage to a young peron?
Can not be convicted of sexual conduct with a young person if married at the time of the conduct.
What sort of belief is required that a person is over 16?
Believes on reasonable grounds
What are the three subsections of 128A(2) - Not consenting if allows activity because of (force):
- force applied to them or some other person
- threat of application of force to them or some other person
- fear of application of force to them or some other person
What are the elements of Sexual conduct with a dependant family member?
-Has sexual connection
-WIth a dependent family member
-Under the age of 18
During the course of a medical examination of a 16 year old female patient, a doctor penetrates the patients vagina with his fingers for his own sexual excitement. He explains to the patient that what he
is doing is a form of treatment. She accepts what she is told and is quite happy for him to continue.Is the doctor liable for sexual violation?
YES, because consent was given under a fraudulent representation as to the nature and quality
of the act
Bob is a scout leader and his troupe contains boys aged 12-14 years old. One day he celebrates a successful jamboree with his troupe at his place and some of the boys stay the night and go to sleep
in Bob's rumpus room Bob has strong feelings for one of the boys, Bert (aged 14). As Bert is sleeping Bob climbs under the
blankets with him and takes the sleeping Berts hand and manipulates it to his own penis masturbating himself with Berts hand for a short time. Bert stirs as if about to wake up which scares Bob out of the bed.
The next morning Bert is non the wiser about what happened the previous night. Identify the most appropriate offence
Sexual Conduct with a young Person under 16 Section 134(3) Crimes Act 1961. Everyone does an Indecent Act On a young person
In any criminal prosecution where proving age is an essential ingredient of a charge, the
prosecution must prove the complainant’s age at the time of the offence.
a) What is the best way of doing this?
b) What is the leading case law to proving age and what was found in the case?
(a) In practice this generally involves producing the complainant’s birth certificate conjunction with
independent evidence that identifies the complainant as the person named in the certificate.
(b) R v Forrest and Forrest - The best evidence possible in the circumstances should be adduced by
the prosecution in proof of [the victim’s] age”.
For a charge of incest to be proved the offender is required to have a certain knowledge. What is
that knowledge?
Must know of the relationship
List the ingredients of incest - Section 130, Crimes Act 1961.
(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.
Define ‘genitalia’ and support your answer with case law.
Includes surgically constructed or reconstructed organ analogous to naturally occurring male or female
genitalia (whether person concerned is male, female or of indeterminate sex (section 2, Crimes Act 1961)
The genitalia comprise the reproductive organs, interior and exterior… they include the vulva [and] the
labia, both interior and exterior, at the opening of the vagina – R v KOROHEKE
In a sexual violation case how can you prove penetration?
Proof of penetration may be established by
* The complainants evidence
* Medical examination including physical injuries and DNA evidence
* The defendants admissions
