Sex Offences Flashcards
Offence of rape
Section 128(1)(a) CA 61 20 years
- A person
- Rapes
- Another person
Offence of unlawful sexual connection
Section 128(1)(b) 20 years
- A person
- Has unlawful sexual connection
- With another person
Offence of attempted sexual violation
Section 129(1) CA 61 10 years
- Everyone
- Attempts to commit sexual violation
Offence of assault with intent to commit sexual violation
Section 129(2) CA 61 10 years
- everyone
- assaults another person
- with intent to commit sexual violation of the other person
Offence of sexual conduct with a child under 12
Section 132(1) 14 years
- Everyone
- Has sexual connection with a child
Offence of attempted sexual conduct with a child under 12
Section 132(2) CA 61 10 years
- Everyone
- Attempts to have sexual connection with a child
Offence of indecent act on a child
Section 132(3) CA 61 10 years
- Everyone
- Does an indecent act on a child
Offence of sexual conduct with a young person under 16
Section 134(1) CA 61 10 years
- Everyone
- Has sexual connection with a young person
Offence of attempted sexual connection with a young person
Section 134(2) CA 61 10 years
- Everyone
- Attempts to have sexual connection with a young person
Offence of indecent act on a young person
Section 134(3) CA 61 7 years
- Everyone
- Does an indecent act on a young person
Offence of indecent assault
Section 135 CA 61
7 years
- Everyone
- Indecently assaults another person
Offence of incest
Section 130(2) CA 61 10 years
- Everyone
- Of or over the age of 16
- commits incest
Offence of sexual conduct with a dependent family member
Section 131(1) CA 61 7 years
- Everyone
- Has sexual connection with a dependent family member under the age of 18
Offence of attempted sexual conduct with a dependent family member
Section 131(2) CA 61 7 years
- Everyone
- Attempts to have sexual connection with a dependent family member under 18
Offence of indecent act on a dependent family member
Section 131(3) CA 61 3 years
- Everyone
- Does an indecent act on a dependent family member under the age of 18
Offence of meeting a young person, following or grooming
Section 131B CA 61
7 years
(1) (a) having met or communicated with a young person under 16 on an earlier occasion, he ot she takes one of the following steps;
- intentionally meets the young person
- travels with the intention of meeting the young person
- arranges for or persuades the young person to travel with the intention of meeting him or her
(B) at the time of taking the action he or she intends to;
- take in respect of the young person an action that would be an offence
- have the young person do on him or her an action that would be an offence
Offence of sexual exploitation of a person with significant impairment
Section 138(1) CA 61 10 years
- Everyone
- has exploitative sexual connection with a person with a significant impairment
Offence of attempted sexual exploitation of a person with significant impairment
Section 138(2) CA 61 10 years
- Everyone
- Attempts to have exploitative sexual connection with a person with a significant impairment
Offence of exploitatively doing an indecent act on a person with a significant impairment
Section 138(4) CA 61 5 years
- Everyone
- Exploitatively does an indecent act on a person with a significant impairment
Definition of rape
Non consensual penetration of the complainants genitalia by the offenders penis
Person A rapes person B if person A has sexual connection with person B effected by the penetration of person Bs genitalia by person As penis
(A) without person Bs consent
(B) without believing on reasonable grounds that person B consents to the connection
Definition of unlawful sexual connection
Any form of non consensual penetration or oral connection with a person’s gentalia or anus
Section 2 CA 61 states 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
- an object held or manipulated by another person
- connection between the mouth or tongue of one person and a part of another persons genitalia or anus
- the continuation of connection of a kind above
What must be proved for a sexual offence complaint
- There was an intentional act by the offender involving sexual connection with the complainant
- The complainant did not consent to the sexual act
- The offender did not believe the complainant was consenting
- If the offender did believe the complainant was consenting the grounds for such a belief were not reasonable
Section 128(4) defence
Before 1986 a man may have a spousal defence to sexually violating his wife
Proof of penetration
Introduction of penis or object into the genitalia or anus to the slightest degree
Proven by;
- complainant evidence
- medical exam, including physical injuries and DNA
- defendants admissions
Case law R v Koroheke
The genitalia comprise of the reproduction organs, interior and exterior they include the vulva, the labia, both interior and exterior, at the opening of the vagina
Section 127 CA 61
There is no presumption of law that a person is incapable of sexual connection because of their age either too old or young
What is the subjective and objective test for consent
(Subjective) the complaiant did not consent to the sexual act
(Subjective) the offender did not believe the complainant was consenting
(Objective) if the offender did believe they were consenting the grounds for such a belief were not reasonable
What is consent and the relevant case law
A persons conscious and voluntary agreement to something desired or proposed by another
R v Cox
Consent must be full, voluntary, free and informed. Fully and voluntarily given by a person in a position to form a rational judgement
Case law R v Gutuama
Under the objective test the crown must prove that no reasonable person in the accuseds shoes could have thought that the complainant was consenting
Section 128A CA 61 - allowing sexual activity
- A person does not consent to sexual activity just because he or she does not protest or offer physical resistance
- A person does not consent to sexual activity if he or she allows it because of force applied to him or her or some other person, the threat (Express or implied) of the application of force to him her or some other person, the fear of the application of force to him her or some other person
- A person does not consent to sexual activity if it occurs while they are asleep or unconscious
- A person does not consent to sexual activity if they are so affected by alcohol or some other drug that he or she cannot consent or refuse consent
- A person does not consent to sexual activity if they are affected by an intellectual mental or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse consent
- A person does not consent to sexual activity because of a mistaken identity
- A person does not consent to sexual activity if they allow the act because they are mistaken about the nature and quality
What is case law R v Koroheke in terms of consent
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
What are two points of intent
- Deliberate act
2. Intent to produce specific result
What are circumstantial evidence
- surrounding circumstances
- offenders actions and words before, during and after the event
- nature of the act itself
What are 3 points of attempted sexual violation
- offender itended to have sexual connection with the complainant
- The complainant did not consent to the sexual act
- The defendant did not believe on reasonable grounds that the complainant was consenting
To be guilty of an attempt the defendant must have progressed past the stage of preparation and started a process intended intended to lead to the commission of the full offence
What is case law R v Harpur in terms of attempt
- 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
- The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. The defendants conduct may be considered in its entirety considering how much remains to be done is always relevant though not determinative.
What is assault
Means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any 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
What are the 2 types of intention with assault with intent to commit sexual violation
- In a hope the complainant will change their mind and consent to the act
- Intending to commit rape or sexual connection regardless of whether the complainant changes their mind
If only in hope complainant will change their mind may be charged with assault or indecent assault
Two times when you might file assault with intent to commit sexual violation
- Where an offender assaults the complainant because they are intent on having intercourse with them and obtaining consent for it
- As an alternative to a charge of attempted sexual violation (particularly where proximity between the assault and the completion of the intended sexual violation is an issue)
Section 132(4) defence
It is not a defence to a charge under this section that the person charged, believed that the child was of or over the age of 12
Section 132(5) defence
It is not a defence to a charge under this section that the child consented