Sex Flashcards
Sexual Violation by Rape
Section 128(1)(a) Crime Act 1961
A Person
Rapes
Another Person
A Person (rape)
Accepted by judicial notice or proved by circumstantial evidence. Must have a penis to rape.
Sexual Violation Defined
Sexual Violation Defined
Section 128 Crimes Act 1961
(1) Sexual violation is the act of a person who-
(a) rapes another person; or
(b) has unlawful sexual connection with another person
Rape
Rape
Section 128 Crimes Act 1961
(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 consented to the connection
Penetration
Penetration
Section 128 (1A) Crimes Act 1961
Introduction to the slightest degree is enough to effect a connection
Proof of penetration may be established by complainant’ evidence, medical examination, defendant’s admissions.
Sexual Connection, Section 2 Crimes Act 1961
Sexual Connection, Section 2 Crimes Act 1961
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise that for a genuine medical purpose, of-
(i) a part of the body of another person; or
(ii) an object held or manipulated by another person; or
(b) connection between the mouth or tounge of one person and a part of another person’s genitalia or anus; or
(c) the continuation of connection of a kind described in paragraphs (a) or (b)
Genitalia (case law)
Genitalia
R v Koroheke
The genitalia comprise the reproduction organs, interior and exterior … they include the vulva and the labia, both interior and exterior, at the opening of the vagina.
Rapes - Consent (definition)
Consent definition
“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.
The Crown must prove that:
- the complainant did not consent to the sexual act (subjective test), and
- the offender did not believe the complainant was consenting (a subjective test), or
- if he did believe she was consenting, the ground for such a belief were not reasonable (objective test).
Consent case law
Consent case law
R v Cox
Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgement.”
R v Gutuama
Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that the complainant was contesting”
Consent defense
Consent defense
Section 128A crimes act 1961 describes matter that do no constitute consent in themselves
Another person (rape)
Although cape complainants will generally be female, it is a gender-neutral offence; give the wide statutory definition of genitalia, the persons biological gender is not relevant.
Sexual Violation by Unlawful Sexual Connection
Section 128(1)(b) Crimes Act 1961
A Person
Has Unlawful sexual connection
With another person
A Person
A Person
This is a gender-neutral offence and can be committed by a male or a female. The fast that the offender is a “person” is generally accepted by judicial notice or proved by circumstantial evidence
Has Unlawful Sexual Connection
Unlawful sexual connection section 128 Crimes act 1961
(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
With another person
With another person
Gender neutral offence
Whereas with rape the complainant’s genitalia must be penetrated by the defendant’s penis, under section 128(1)(b) the roles are not specified in terms of who is penetrated and who does the penetrating. therefore, for example, it may be the offender who is penetrated by the complainant.
Rapes - Definitions List
Sexual Violation Defined Rape Penetration Sexual Connection Genitalia Consent Defense- Consent
Has Unlawful Sexual Connection - Definition List
Unlawful Sexual Connection Sexual Connection Section 128(1)(b) CA 1961 Sexual Connection Section 2 CA 1961 Penetration Consent Defense- Consent
Assault with Intent to Commit Sexual Violation
Section 129(2) CA 1961
A Person
Assaults Another Person
With Intent to Commit Sexual Violation Of the Other Person
Assaults Another Person
Assaults
Section 2 Crimes Act 1961
Means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by and 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 has, present ability to effect his purpose;
The assault need not be on an indecent nature provided it is done with the intention of, and for the purpose of, committing sexual violation
Person
Accepted by judicial notice or proved by circumstantial evidence. Must be a person other than the defendant.
With intent to commit sexual violation of the other person
It must be proved that at the time the defendant assault the complainant they:
- Intended to have sexual connection with the complainant, and
- the complainant did not consent to the sexual connection, and
- the defendant did not believe on reasonable grounds that the complaint was consenting.
Sexual violation
Sexual connection section 2 CA 1961
Consent
Person
Sexual Conduct with a Child under 12
Section 132(1) CA 1961
A Person
Has Sexual Connection
With a Child
Has Sexual Connection
Sexual Conduct with a Child under 12
Sexual Connection Section 2 CA 1961
(No defense) Section 132 CA 1961
(4) It is not a defense 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 defense to a charge under this section that the child consented.
With a child
Child Section 132 CA 1961 Sexual conduct with a child uner 12 (6) in this section,- (a) child means a person under the age of 12 years
These offences are gender neutral and may be committed against a boy and a girl.
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.”
Sexual Conduct with a Child under 12 (attempts)
Section 132(2) CA 1961
A Person
Attempts to have sexual connection
With a child
Attempts to have sexual connection
Sexual Conduct with a Child under 12 (attempts)
Attempts
Section 72 CA 1961
(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
Sexual connection Section 2 CA 1961
No defense Section 132 CA 1961
Sexual Conduct with a child under 12 (indecent act)
Section 132(3) CA 1961
A Person
Does an indecent act
On a child
Does an indecent act
Sexual Conduct with a child under 12 (indecent act)
Indecent Act
Section 2 CA 1961
(1B) For the purpose of this Act, one person does an indecent act on another person whether he or she-
(a) does an indecent act with or on the other person; or
(b) induces or permits the other person to do an indecent act with or on him or her.
Indecency
R V Court
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of the complainant.
R V Dunn
indecency must be judged in the light of the time, place and circumstances. It must be something more that trifling, and me sufficient to “warrant the sanction of the law”
No defense Section 132 CA 1961
(4) it is not a defense to a charge under this section that the person charge, believed that the child was of or over the age of 12 years.
(5) it is not a defense to a charge under this section that the child consented.
(6) in this section
(b) doing an indecent act on a child includes indecently assaulting the child.
Sexual conduct with a young person under 16
Section 134(1) CA 1961
A Person
Has sexual connection
With a young person
Has Sexual connection
Sexual conduct with a young person under 16
Sexual connection
Section 2 CA 1961
Section 134 CA 1961
(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 you person in respect of whom an offence against this act 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 when the offence was committed.
Defense to charge under 134
Section 134A CA 1961
(1) it is a defense 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
(b) at the time of the act concerned, he or she believed on reasonable grounds that the young person was over the age of 16; and
(c) the young person consented
With a young person
Young person
Section 134 CA 1961
(6) in this section
(a) a young person means a person under the age of 16
R V Forrest and Forrest
“the best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.”
Section Connection with a young person under 16 (attempts)
Section 134(2) CA 1961
A Person
Attempts to have sexual connection
With a young person
Attempts to have sexual connection
Section Connection with a young person under 16 (attempts)
Attempts
Section 72 CA 1961
Sexual Connection
Section 2 CA 1961
Section 134 CA 1961
(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 you person in respect of whom an offence against this act 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 when the offence was committed.
Defense to charge under 134
Section 134A CA 1961
(1) it is a defense 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
(b) at the time of the act concerned, he or she believed on reasonable grounds that the young person was over the age of 16; and
(c) the young person consented
Sexual conduct with a young person under 16 (indecent act)
Section 134(3) CA 1961
A Person
Does an indecent Act
With a young person
Does an indecent act
Sexual conduct with a young person under 16 (indecent act)
Indecent Act
Indecency
R V Court
R V Young
defense Section 134
defense section 134A Ca 1961
Indecent Assault
Section 135 CA 1961
A Person
Indecently assaults
Another person
Indecently assaults
Assault
Section 2 CA 1961
Section 135 requires proof of an assault, although it does not need to be forceful or violent, a gentle caress may suffice. indecent assaults may include attempts to apply force and threats by act or gesture to apply force in circumstances of indecency.
Indecent assault cannot be committed accidentally; it must be proved that the defendant intended to act indecently.
Indecent Assault
R V Leeson
“The definition of ‘indecent assault’ … is an assault accompanied with circumstances of indecency…”
The prosecution my prove that
- the defendant intentionally assault the complainant and
- the circumstances accompanying the assault were indecent and
- the defendant intended the conduct that a reasonable person would find indecent and
- the complainant did no consent to the assault and
- the defendant did not honestly believe that the complainant was consenting
R V Norris
I a person who is charge with indecent assault is able to establish that they honestly believed that the complainant was consenting, they are entitled to be acquitted even though the grounds of his belief were unreasonable
