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Sexual offences > Sex offences > Flashcards

Sex offences Flashcards

1
Q

In all cases of sexual violation the crown must prove beyond reasonable doubt:

A
  • 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 the complainant was consenting or
  • or if the offender did believe the complainant was consenting, the grounds for such a belief were not reasonable

So any investigation must prove that either:
- the defendant knew they did not have the victims consent but acted anyway (meas rea) or
- the defendants grounds for believing that the victim consented to the act were unreasonable

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2
Q

s128(4) no legal spousal defence

A

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

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3
Q

s128- sexual violation defined

A

(1)
Sexual violation is the act of a person (gender neutral) who—
(a)
rapes another person; or
(b)
has unlawful sexual connection with another person.
(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.
(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.
(4)
One person may be convicted of the sexual violation of another person at a time when they were married to eachother

Important- if person gives consent- it will not be this liability. Look for another suitable one.

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4
Q

s128(b) Sexual violation

A

(1)
Every one who commits sexual violation is liable to imprisonment for a term not exceeding 20 years.
(2)
A person convicted of sexual violation must be sentenced to imprisonment unless, having regard to the matters stated in subsection (3), the court thinks that the person should not be sentenced to imprisonment.
(3)
The matters are—
(a)
the particular circumstances of the person convicted; and
(b)
the particular circumstances of the offence, including the nature of the conduct constituting it.

Sexual violation may be committed in a number of different ways, each of which carries the same max penalty, but this does not mean that the acts are equally serious. The seriousness of an offence depends on the facts on a particular case

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5
Q

Proof of penetration may be established by:

A
  • complainants evidence
  • medical examination, including physical injuries and DNA evidence
  • the defendants admissions
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6
Q

Objects held/manipulated:

A

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

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7
Q

Genuine medical purposes:

A

Some medical practices involve penetration of a patients genetalia or anus by a doctor, provided this is done for a genuine medical purpose. such penetration is excluded from definition of sexual connection. Note if it is done on the need of sexual gratification, it may amount to sexual violation.

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8
Q

Oral sexual connection:

A

Not necessary for penetration, any touching of a persons genitals or anus with another persons mouth or tounge is sufficent.

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9
Q

Continuation of such acts:

A

Sexual connection starts consensually but consent is later withdrawn. Obligation on person to stop sexual activity at point he realises other person is or may be willing.

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10
Q

s127 No presumption because of age:

A

There is no presumption of law that a person is incapable of sexual connection because of his/her age. Any person of any age is capable, in a legal sense or being involved in SC. therefore age is not a defence to sex related charge.

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11
Q

What makes sexual connection unlawful? crown must prove:

A
  • the complainant did not consent to the sexual act (subjective test) and
  • the offender did not believe the complainant was consenting (subjective test)
  • if he did believe she was consenting, the grounds for such belief were reasonable (objective test)
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12
Q

Reluctant consent:

A

True consent may be reluctantly or hesitantly and may be regretted afterwards, but if the consent is given even in such a manner, provided it is without fear or the application of force, result of actual or threatened force, the the act of sexual connection would not be rape.

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13
Q

Subjective test: Absence of consent:

A

Crown must prove that the complainant was not consenting to the sexual act at the time it occurred, Subjective test from complainants point of view eg “what was the complainant thinking at the time”

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14
Q

Subjective test: Belief in consent:

A

If it is established that the complainant was not consenting, next question is whether or not the defendant believed he/she was consenting at the time. Subjective test from defendants POV. If he/she believed consent was present, an objective test must be applied to determine whether there was a reasonable basis for his/her belief.

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15
Q

Objective test: RG for belief in consent:

A

Objective test is: what would a reasonable person have believed if place in the same position as the defendant?

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16
Q

Recklessness as to consent:

A

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

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17
Q

When is consent relevant:

A

Is at the time the act actually took place. Complainants behaviour and attitude before or after the act itself may be relevant. The real point is whether there was true consent, or a reasonably based belief in consent, at the time the act took place.

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18
Q

Matters not constituting consent:

A

s128A outlines situations where consent may not be valid, eg as a result of fear or force, or is asleep/unconscious, mental incapacity, mistake.

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19
Q

s128A- allowing sexual activity does not amount to consent in some circumstances

A

(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.

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20
Q

Lack of protest or resistance (consent):

A

Lack of protest or resistance does not mean person is consenting, even if lack of consent has not been communicated to the defendant. What is relevant is complainants state of mind.

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21
Q

Force, threat, or fear of force.

A

Force: allowing sexual activity does not amount to consent to SC if some degree of force has been used to obtain compliance.
Threat: Threat must be threat to use force against the victim or some other person.
Fear: the victim must be afraid that force will be used against them or another person, even if the force was not actually used or threatened.

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22
Q

Asleep of conscious:

A

s128(3) sexual activity while complainant is asleep or unconscious is non consensual- based on the fact at the relevant time for consent is the time of sexual activity, without reference to things said or done before or afterwards. therefore prior agreement to SA that is to occur once the complainant is asleep does not constitute consent.

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23
Q

Affected by alcohol or drugs:

A

May impact persons ability to give valid consent. Question is whether they were effected to such an extent that they were incapable of understanding the situation and giving rational and reasonable consent. It may be possible for crown to prove that a complainant was not consenting even though she may have no recollection of the events herself.

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24
Q

Mistake as to identity and as to nature and quality of the act:

A

Consent is nullified if it based on mistaken identity of the other person and when the complainant is unaware of the true nature of the physical act to which they are agreeing.

25
Q

A person:

A

Gender neutral. Person A the offender, rapes person B the complainant.

26
Q

To be guilty of an attempt to commit and offence person must:

A
  • intent to commit the offence, and
  • take a real and substantial step towards achieving that aim.

Crown must prove that the defendant intended to commit the full act of SV, and acted as he did for the purpose of achieving that aim.

27
Q

Intent:

A

Intent to commit the act and secondly, an intention to get a specific result. Deliberate act “ intent means that act or omission must be done deliberately. More then involuntary or accidental. Intent to produce a specific result in this context is “aim, object, or purpose”

R v Collister- intent cant be inferred from the circumstances, including offenders actions words, before during after event, the surrounding circumstances and the nature of the act itself.

28
Q

Mens rea in attempted sexual violation:

A

offender was unsuccessful in effecting the intended sexual connection. Intent and reasonable belief in consent is the same

29
Q

To be guilty of an attempt:

A

Defendant must have progressed past the stage of preparation and started a process of intended to lead to the commission of the full offence.

30
Q

Sufficiently proximate:

A

In assessing proximity, the court will analyse the defendants conduct at the relevant time, in conjunction with evidence of his intent based on the circumstances and any steps taken leading up to that point. Although he may be several steps away from the actual event, this cumulative assessment may allow the court to infer that the defendant intended to commit the full offence and had started to do so.

31
Q

Examples of acts that may be sufficiently proximate:

A

No criteria as there are infinate variety of factual situations, to assist in determining whether a defendants actions did or did not amount to an attempt. However court did refer to american penal code as:
- lying in wait searching or following victim
- enticing victim to go to scene of contemplated crime
-possession, collection of materials to be employed in commission of offence
- unlawful entry of a structure or vehicle in which it is contemplated offence will be committed.

32
Q

Intent in relation to assault with intent to commit sexual violation:

A

The offender may assault the victim:
- in hope that the complainant will then change their mind and consent to the act, or
- intending to commit rape or sexual connection regardless of whether the complainant changes their mind

33
Q

Mens rea for assault with intent to commit sexual violation:

A

Must be proved at the time the defendant assaulted the complainant, he:
- 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 complainant was consenting

May charge when:
- Offender assaults complainant, with intent to have sexual intercourse to obtain their consent for that
- as alternative charge to attempted sexual violation. When proximity of assault and completion of sexual violation is an issue.

34
Q

129A(5) Sexual conduct with consent induced by certain threats

A

The kinds of threat referred to in subsections (3) and (4)(a) are—
(a)
a threat that the person making the threat or some other person will commit an offence that—
(i)
is punishable by imprisonment; but
(ii)
does not involve the actual or threatened application of force to any person; and
(b)
a threat that the person making the threat or some other person will make an accusation or disclosure (whether true or false) about misconduct by any person (whether living or dead) that is likely to damage seriously the reputation of the person against or about whom the accusation or disclosure is made; and
(c)
a threat that the person making the threat will make improper use, to the detriment of the person consenting, of a power or authority arising out of—
(i)
an occupational or vocational position held by the person making the threat; or
(ii)
a commercial relationship existing between the person making the threat and the person consenting.

35
Q

Can a child under 12 consent to sexual intercourse?

A
  • only in exceptional and rear circumstances that a child under 12 could legally give consent
36
Q

Is it an offence for adoptive parent to have sexual intercourse with his 18yr old daughter?

A

Yes, adoptive parents (legal parents) are defined as parents therefore it is incest. But NOT step parents

37
Q

Sexual violation

A
  • may be committed in a number of different ways all in which carry maximum prison sentence not exceeding 20yrs.
  • matters to be considered are particular circumstances of the person convicted, and particular circumstances of the offence including nature of conduct
38
Q

Sexual connection means:

A
  • connection by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purpose of
    (A) a part of the body of another person or
  • an object held or manipulated by another person
    (B) connection between the mouth or tounge of one person and a part of another’s genetalia or anus or
    (C) continuation of connection of any kind described above

Extent of penetration is not relevant, any degree of penetration is sufficient

39
Q

Proving penetration:

A
  • complaints evidence
  • medical examination, injuries, DNA
  • offender admissions
40
Q

Genetalia

A
  • organs of generation, penis and testicles of male, and vulva and vagina of female
  • includes surgically constructed or reconstructed organs extending offence to include those who have undergone gender reassignment surgery
  • for rape, penetration of the genatalia by the penis and no valid consent. Age of the victim is irrelevant if there is no consent.
41
Q

Anus

A

Is not included in definition of genetalia, therefore non consensual penile penetration is not rape. 128(1)(b)

42
Q

Mouth or tounge:

A

In the case of oral sexual connection, does not have to be penetration, any form of touching a persons genetalia or anus with a persons mouth or tounge is sufficient

43
Q

Consent

A

Is a persons conscious and voluntary agreement to something desired or proposed by another

44
Q

Incest s130(1)

A
  • Establish relevant relationship (parent and siblings, siblings, half siblings, grandparents and grandchild)
  • person charged is over 16 and knows of relationship
  • will be consent between two parties. Any age over 16
  • can be applied to non biological parents who have adopted child legally but not step parents
45
Q

What’ does a prelim establish?

A
  • brief outline of facts
  • victim and public safety
  • urgent investigative needs, eg loss of evidence, medical circumstances and suspect likely actions
  • ASA investigator is preferable to conduct prelim.
46
Q

Rape v Sexual connection

A

Rape is non consensual penetration of the complaints genitalia by the offenders penis

Unlawful sexual connection includes any form of non consensual penetration or oral connect with a persons genitalia or anus.

Max prison sentence of 20yrs.

47
Q

Slightest degree of penetration is sufficient s2CA

A

Definition of sexual connection- introduction to the slightest degree is enough to effect a connection. So while penetration must be proved, any degree of penetration must be proved no matter how slight or fleeting

48
Q

Genitalia definition

A

Include penis and testicles of male and the vulva and vagina of female. Also includes surgically constructed or reconstructed genitalia to include offences involving trans gender.

49
Q

s131(1) sexual conduct with dependant family member

A
  • establish relationship, NOT incest, uncle, Aunty or step parent who has some power or authority over YP
  • YP must be aged between 16-17yrs
  • some degree of consent but this is not a defence
50
Q

Consent

A
  • If consent is given- justifies charge not being s128
  • ## a YP under 12 can give valid consent, that is however not a defence to charge s132
51
Q

s132 sexual conduct with child under 12

A

(1) everyone who has sexual connection with a child is liable ti imprisonment for term not exceeding 14yrs
2) everyone who attempts sexual connection with child is liable for term not exceeding 10yrs
3) everyone who does an indecent act on child liable for term not exceeding 10yrs
4) not a defence if person charged believed the child was or over the age of 12yrs
5) child consenting is not a defence to charge under this section

52
Q

S134- sexual conduct with a young person

A
  • person (gender neutral)
  • has sexual connection (cite s2 1961)
  • consent (consent is not a defence on its own, but there will be an element of it otherwise s128 applies)
  • 134(4) defence- no person can be charged with this section if he or she was married to the YP at the of sexual connection.
    Defence if it is proved that- before act, had taken reasonable steps to find out whether the YP was over 16 AND
    Believed on RG that the YO was of or over 16 AND
    YP consented

Except- 134 it is not a defence that YP consented and person charged believed that the YP was as or of age 16

  • with a young person under 16
    R v Forrest and Forrest- demonstrate persons age
53
Q

S135(1) indecent assault (victim will be over 16yrs)

A
  • A person
  • indecently assaults
    (Assaults definition- intentional application of force, directly or indirectly)
  • indecent aspect (R v Court and R v Dunn)
    What crown must prove (intended the conduct/ subjective test/ objective test)
  • another person
54
Q

138- sexual exploitation of person with significant impairment

A

S138(3)- he or she 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 acceptance of, submission to, participation in , or undertaking of the connection by taking advantage of the impairment

This is when act becomes an offence and knowing the person has an impairment, and exploiting that impairment to get participation in the act.

55
Q

S195A- failure to protect a child or Vulnerable adult

A

-Offence is one of failing to act when you know a child or vulnerable adult is at risk of death/GBH or sexual harm
- members of same household, staff at hospital, institution, residence where victim lives
- only applies to people 18 and over and they don’t need to live at address but have frequent contact or connection eg uncle bob who visits daily but fails to act
- mens rea of this act ie knowing that the child or vulnerable adult is at risk of death, GBH, sexual harm
- actus rea is failing to take steps to protect that child or vulnerable person e.g calling the police

56
Q

Evidence act 2006 - s44 evidence of sexual experience or sexual disposition of complainants in sexual cases

A

In a sexual case, unless judge gives permission, no evidence can be given and no question can be put to a witness that relates directly or indirectly to-
- the sexual experience of three complainant with the defendant

57
Q

Evidence act 2006- s87 privacy as to witness precise address

A

Witness address (details of street and number) may not be subject of any question or evidence given, or included in any statement or remark made by witness.

58
Q

ASA guidelines

A
  • points cover off with victim during pre lim
  • what would you tell them before they go for medical exam?
  • what actions can be taken to assist victims to recover? CALMTEA
59
Q

CPT guidelines

A
  • what are we hoping to achieve with medical exam of child?
  • what would we do with info from child EVI?

Sexual offences (2 decks)

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