Sex Offences Flashcards
Sexual Violation by Rape
S128(1)(a) CA 1961
A person
Rapes
Another person
Sexual Violation by Unlawful Sexual Connection
S128(1)(b) CA 1961
A person
Has unlawful sexual connection
With another person
Assault with Intent to Commit Sexual Violation
S129(2) CA 1961
A person
Assaults
Another person
With intent to commit sexual violation of the other person
Sexual Conduct with a Child Under 12
S132 CA 1961
A person
(1) has sexual connection with a child
(2) Attempts to have sexual connection with a child
(3) Does an indecent act on a child.
Sexual Conduct with a Young Person under 16
S134 CA 1961
A person
(1) Has sexual connection with a young person.
(2) Attempts to have sexual connection with a young person.
(3) Does an indecent act on a young person.
Indecent Assault
S135 CA 1961
A person
Indecently assaults
Another person
S128A CA 1961 (Consent cannot be obtained under the following)
FAAILMM
Force
Alcohol or drugs
Asleep or unconscious
Intellectually, mentally or physically impaired.
Lack of resistance/protest
Mistaken Identity
Mistake as to nature or quality
Penetration
Penetration is introduction to the slightest degree, no matter how slight of fleeting, is enough to effect connection.
Genitalia
Reproductive organs (Penis, testicles, vagina, vulva)
R v Koroheke (Genitalia)
Genitalia compromises of the reproductive organs, interior and exterior including the vulva, labia, and exterior and interior of the opening of the vagina.
Rape
Specific form of sexual violation that involves non consensual penetration of the complainants’ genitalia by the offenders penis.
Continuation
Where consensual sex is commenced, but consent is later withdrawn. There is an obligation to stop.
Consent
A persons conscious and voluntary agreement to something desired or proposed.
R v Cox
Consent must be full, voluntary, free and informed. Must be given by a person of rational judgement.
R v Gutuama
Under the objective test the crown must prove that “no reasonable person in the accused shoes would believe the complainant was consenting.”
In all sexual violation cases what must the prosecution prove beyond reasonable doubt?
There was an intentional act 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
If he did believe she was consenting, the grounds for such belief were not reasonable.
What must the Crown prove regarding consent
The complainent did not consent to the sexual act (a subjective test) AND
The offender did not believe the complainant was consenting (a subjective test) OR
what would a reasonable person have believed if placed in the same position as the defendant.
Sexual Connection Legislation
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 -
(i) a part of the body of another person.
(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).
Evidence in proving penetration
The complainant’s evidence
Medical examination
Defendant admission
R v Forest and Forest
Best possible evidence of child or young persons age to be produced by the Crown or Prosecution.
R v Court
Conduct that right thinking people would consider an affront to sexual modesty of the victim. (Indecent Act)
R v Leeson
An assault accompanied with circumstances of indecency (indecent assault)
R v Harpur
Independent acts when viewed in isolation can be seen as preparatory, however, when viewed collectively can be viewed as attempt.
The defendants conduct may be viewed in its entierity. Considering how much remains to be done is always relevant, though not determinative.
Cox v R
No reasonable adult would have grounds to believe that a child would have experience or maturity to understand nature and significance of the act.
Defence to S134 CA (S134A)
Defendant must have made all reasonable steps to establish the age of the young person AND
Believed on reasonable grounds that the person was over 16 AND
That person consented to sexual connection.
R v Koroheke (Force and threats)
Important to distinguish between consent that is freely given and submission that is given by a woman to what she may regard as unwanted but unavoidable.
Sexual Connection Forms
S128(1)(b) includes
Penetration of a persons genitalia or anus by a part of a other persons body (such as a finger in the vagina, or a penis in the anus)
Penetration of a persons genitalia or anus by an object held or manipulated by another person (such as a vibrator or bottle)
Touching of a persons genitalia or anus by another persons mouth or tongue (oral sex)
Rape Defined
As per S128 (2)
Offender had sexual connection with victim
Effected by the penetration of victims genitalia by offenders penis.
Without the victims consent to the connection
Sexual Connection in regards to rape
S2(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes (i) a part of the body of another person.
Timing of complaint categories for ASAI
- Acute - reported within 7 days
- Non-acute - reported between 7 days and six months
3 historic reported after six months
