Sex Offences Flashcards
Sexual Violation by Rape
(Act & Section)
Section 128(1)(a), Crimes Act 1961
Sexual Violation by Rape
(elements)
- A person
- Rapes
- Another person
Sexual Violation by Unlawful Sexual Connection
(Act & Section)
Section 128(1)(b), Crimes Act 1961
Sexual Violation by Unlawful Sexual Connection
(elements)
- A person
- Has Unlawful Sexual Connection
- With another person
Assault with Intent to Commit Sexual Volation
(Act & Section)
Section 129(2), Crimes Act 1961
Assault with Intent to Commit Sexual Volation
(elements)
- A person
- Assaults
- Another person
- With Intent to commit sexual violation of the other person.
Incest
(Act & Section)
Section 130(1), Crimes Act 1961
Incest
(elements)
- A person
- Has sexual connection
- with a person whose relationship is that of parent and child, siblings, half-siblings, grandparent and grandchild
- the person charged knows of the relationship
Sexual Conduct with a Dependent Family Member
(Act & Section)
Section 131(1)/(2)/(3), Crimes Act 1961
Sexual Conduct with Dependent Family Member
(elements)
- A person
- (1) has sexual connection with a dependent family memebr
- (2) attempts to have sexual connection with a depedent family member
- (3) does an indecent act on a dependent family member
- under the age of 18 years
Sexual Conduct with a Child Under 12
(Act & Section)
Section 132(1)/(2)/(3), Crimes Act 1961
Sexual Conduct with a Child Under 12
(elements)
- A person
- (1) has sexual connection with
- (2) attempts to have sexual connection with
- (3) does an indecent act on
- a child
Sexual Conduct with a Young Person Under 16
(Act & Section)
Section 134(1)/(2)/(3), Crimes Act 1961
Sexual Conduct with a Young Person Under 16
(elements)
- A person
- (1) has sexual connection with
- (2) attempts to have sexual connection with
- (3) does an indecent act on
- a young person
Indecent Assault
(Act & Section)
Section 135, Crimes Act 1961
Indecent Assault
(elements)
- A person
- Indecently assaults
- Another person
Rape (define)
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
Unlawful Sexual Connection (define)
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
Defence to Charge under Section 134
Section 134A
(a) before the time of the act concerned, he or she had taken reasonable steps to find out whether the young person 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
Assault in section 135
Section 135 requires proof of an assault, although it does not need to be forceful or violent; a gentle caress may suffice. Given the wider definition of assault, indecent assault may include attempts to apply force and threats or gesture to apply force in circumstances of indecency. An accidental or neglegent application of force is not enough. The slightest touching can amount to an assault. It is not necessary the victim be aware of the threat or gesture.
Sexual Connection (define)
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes 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 tongue of one person and a part of another person’s genitalia or anus or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)
Genitalia (define)
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 penis and testicles of a male, and the vagina and vulva of a female)
Genitalia (case law)
R v Koroheke
Genitalia (R v Koroheke held)
The genitalia comprise the reproduction organs, interior and exterior… they include the vulva, the labia, both interior and exterior, at the opening of the vagina.
Penis (define)
Penis includes a sergically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female, or of indeterminate sex)
Penetration (define)
Section 2(1A) Crimes Act 1961
Introduction to the slightest degree is enough to effect a connection
Proving Penetration
proof of penetration may be established by:
- the complainant’s evidence
- medical examination, including physical injuries and DNA evidence
- the defendant’s admissions
Indecent Assault (case law)
R v Leeson
Indecent Assault (R v Leeson held)
The definition of indecent assault… is an assault accompanied with circumstances of indecency
Indecency (case law)
R v Court
Indecency (R v Court held)
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of the complainant”
Indecency (objective test case law)
R v Dunn
Indecency (R v Dunn held)
Indecency must be judged in light of the time, place, and circumstances. It must be something more than trifling, and must be sufficient to warrant the sanction of the law.
Indecent Assault belief in consent (case law)
R v Norris
Indecent Assault (R v Norris held)
If a person who is charged with indecent assault is able to establish that they honestly believed that the complainant was consenting, they are entitled be acquitted even though the grounds for his belief were unreasonable.
effective Consent (case law)
R v Cook
effective Consent (R v Cook held)
To be effective, consent must be “real genuine and true consent, and that it may be conveyed by words or conduct or both”
Consent (case law)
R v Cox
Consent (R v Cox held)
Consent must be full voluntary free and informed…freely and voluntarily given by a person in a position to form a rational judgement.
Belief in consent objective test (case law)
R v Gutuama
Belief in Consent (R v Gutuama held)
Under the objective test the Crown must prove that no reasonable person in the accused’s shoes could have thought that [the complainant] was consenting
Reluctant Consent (case law)
R v Herbert
Reluctant Consent (R v Herbert held)
A true consent may be given reluctantly or hesitantly and may be regretted afterwards but if it is given even in such a manner, provided it is without fear of the application of force or the result of actual or threatened force then the act of sexual connection would not be rape
Assault with Intent to Commit Sexual Volation must prove
- Intent to commit sexual connection
- the complainant did not consent
- they did not believe on reasonable grounds the person was consenting
- the assault does not need to be indecent
When is consent relevant (case law)
R v Adams
When is consent relevant (R v Adams held)
the material time when consent, and belief in consent is to be considered is at the time the act actually took place. The complainant’s behavior and attitude before or after the act itself may be relevant to that issue, but it is not decisive.
The real point is whether there was true consent, or a reasonably based belief in consent at the time the act took place.
Force, threat or fear of force (case law)
R v Koroheke
Force, threat or fear of force (R v Koroheke held)
It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or cooperate, is not true consent.
Consent Withdrawn (case law)
Crump v R
Consent Withdrawn (Crump v R held)
In a sexual violation by rape case, where there is evidence that consent has been withdrawn, there will be six elements that may need to be proven:
1. Are you sure that X sexually penetrated Y by introducing his penis into her genitalia?
2. Are you sure that Y did not consent to this penetration?
3. Are you sure that X knew that Y was not consenting to the penetration? (subjective)
4. Are you sure that X continued with the penetration knowing Y was no longer consenting? (subjective)
5. Are you sure that X did not believe on reasonable grounds that Y was consenting to the penetration? (objective)
6. Are you sure that X continued penetration when a reasonable person would not believe that Y was still consenting? (objective)
Sufficiently Proximate Attempt (case law)
R v Harpur
Sufficiently Proximate Attempt (R v Harpur held)
The Court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops… the defendant’s conduct may be considered in its entirety. Considering how much remains to be done… is always relevant, though not determinative.
Consent of a Child/Reasonable belief in consent of a child (case law)
Cox v R
Consent of a Child (Cox v R held)
Although we do not exclude the possibility that a child of ten or eleven may be able to give full voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare. A ten or eleven year old child may know what sexual intercourse is. She may indicate her agreement.
Reasonable belief in Consent of a Child (Cox v R held)
Save in exceptional and rare circumstances… even where she indicates an agreement to the act occurring… no reasonable adult would have grounds for believing that a ten or eleven year old girl has the experience or maturity to understand the nature and significance of the act.
Matters not Consent (Act & Section)
Section 128A, Crimes Act 1961
Matters not Consent (Section 128A)
- does not protest or offer physical resistance.
- because of force, threat or force, fear or force to anyone.
- asleep or unconscious.
- so affected by alcohol or drugs that they cannot consent or refuse to consent.
- so affected by intellectual, mental, or physical condition that they cannot consent or refuse to consent.
- is mistaken about who the other person is.
- is mistaken about the nature and quality or the act.
- This section does not limit the circumstances that are not consent.
-
allows - includes acquiesces in, submits to, participates in, undertakes.
sexual activity - sexual connection, or indecent act without consent.
Attempt (case law)
R v Harpur
Attempt (R v Harpur held)
An attempt includes “an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
Must prove for indecent assault
- the defendant intentionally assaulted the complainant
- the circumstances accompanying the assault were indecent
- the defendant intended the conduct that a reasonable person would find indecent.
Evidence Act 2006 (Section 35)
Previous consistent statement rule
(1) A previous statement of a witness that is consent with the witness’s evidence is not admissible unless (2)
(2) A previous statement of a witness that is consent with the witness’s evidence is admissible if the statement-
(a) responds to a challenge to a witness’s veracity or accuracy, based on inconsistency or claim of invention.
(b) forms an integral part of events before the court.
(c) consists of the mere fact a complaint has been made.
Evidence Act 2006 (Section 44)
Section 44, Evidence of sexual experience of complainant
In a sexual case, (unless a Judge gives permission) no evidence can be given and no question can be put to a witness relating directly or indirectly to-
(a) the sexual experience of the complainant with the defendant (except to establish 1 or both of the following)
(i) the mere fact that the complainant has sexual experience with the defendant
(ii) an act or omission that is one of the elements of the offence for which the defendant is being tried.
(b) the sexual experience of the complainant with anyone other than the defendant
(c) the sexual disposition if the complainant
(2) Judge must not grant permission unless, it would be contrary to the interest of justice to exclude it
(3) Permission of judge not require to rebut
(4) If defendant charged as party to, can question sexual experience with other party. But not defendant with the other party.
Evidence Act 2006 (Section 87)
Privacy as to witness’s precise address
(1)In any proceeding, the precise particulars of a witness’s address (eg details of street and number) may not… be
(a) the subject of any question to a witness or included in any evidence given; or
(b) included in any statement or remark made by a witness, lawyer, officer or the court, or any other person.
Evidence Act 2006 (Section 88)
Restriction on disclosure of complaint’s occupation in sexual cases
(1) In a sexual case, except with permission of the Judge, -
(a) no question may be put to the complainant or any other witness, and no evidence may be given, concerning the complainant’s occupation; and
(b) no statement or remark may be made in court by a witness, lawyer, officer of the court, or any other person involved in the proceeding concerning the complainant’s occupation.
Evidence Act 2006 (Section 121)
Corroberation
(1) It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated, except with respect of the offences of-
(a) perjury
(b) false oaths
(c) false statements or declarations
(d) treason
(2) Subject to (1) and S. 122, not necessary for judge to warn jury or give direction relating to absence of corroboration.
12 key process points
- Initial Action on Contact
- Case Referral
- Providing Specialist Support
- Preliminary Interview
- Information Feedback
- Medical Examination
- Formal Interview
- Investigation and Evidence Assessment
- Resolution Options
- Prosecution
- Final Actions & Record Keeping
- Preventative Opportunities and Responsibilities
12 key process points
Point 1
Initial Action on Contact
12 key process points
Point 2
Case Referral
12 key process points
Point 3
Providing Specialist Support
12 key process points
Point 4
Preliminary Interview
12 key process points
Point 5
Information Feedback
12 key process points
Point 6
Medical Examination
12 key process points
Point 7
Formal Interview
12 key process points
Point 8
Investigation and Evidence Assessment
12 key process points
Point 9
Resolution Options
12 key process points
Point 10
Prosecution
12 key process points
Point 11
Final Actions and Record Keeping
12 key process points
Point 12
Preventative Opportunities and Responsibilities
C.A.L.M T.E.A
Conduct your dealings in a sensitive and concerned manner
Accept they are telling the truth until/unless there is evidence to the contrary
Listen to what they tell you, give them an opportunity to use their own words, or even just to vent.
Medical attention, do they require it?
Treat them courteously
Explain the process, and why the process is, and why you ask certain questions
Advise them of local services
