SEX OFFENCES Flashcards
Liability: SEXUAL VIOLATION BY RAPE
S128(1)(a) Crimes Act 1961
A person
Rapes
Another person
PERSON *
Accepted by judicial notice or proved by circumstantial evidence.
Must have a penis to rape.
SEXUAL VIOLATION *
S128 Crimes Act 1961
Sexual violation is the act of a person who:
- rapes another person
- has unlawful sexual connection with another person
RAPE *
S128 Crimes Act 1961
A rapes B if A has sexual connection with B effected by the penetration of B’s genitalia by A’s penis –
- without B’s consent to the connection and
- without believing on reasonable grounds that B consents to the connection
PENETRATION *
S2(1A) Crimes Act 1961
Introduction to the slightest degree is enough to effect a connection.
Proof of penetration may be established by complainant’s evidence, medical examination and defendant admissions.
SEXUAL CONNECTION *
S2 Crimes Act 1961
(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 or of another person’s genitalia or anus
(c) the continuation of connection of a kind described in paragraph (a) or (b)
GENITALIA *
Reproductive organs.
R v KOROHEKE
R v KOROHEKE (body parts) *
The genitalia comprise the reproductive organs, interior and exterior… they include the vulva [and] the labia, both interior and exterior at the opening of the vagina
CONSENT *
A person’s conscious and voluntary agreement to something desired or proposed by another.
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 (subjective test) or if he did believe she was consenting, the grounds for such a belief were not reasonable (objective test)
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 consenting.
MATTERS NOT CONSTITUTING CONSENT *
- lack of protest or resistance
- force, threat or fear of force
- asleep or unconscious
- affected by alcohol or drugs
- intellectual, mental or physical impairment
- mistake as to identity
- mistake as to nature and quality of the act
R v KOROHEKE (consent) *
Submission by a woman because she is frightened of what might happen if she does not give in or cooperate is not true consent.
Liability: SEXUAL VIOLATION BY UNLAWFUL SEXUAL CONNECTION
S128(1)(b) Crimes Act 1961
A person
Has unlawful sexual connection
With another person
DEFENCE ULSC CHILD < 12 *
S132 Crimes Act 1961
It is not a defence that the person charged believed the child was or over the age of 12 years.
It is not a defence that the child consented.
Liability: ASSAULT WITH INTENT TO COMMIT SEXUAL VIOLATION
S129(2) Crimes Act 1961
A person
Assaults
Another person
With intent to commit sexual violation of the other person
Liability: SEXUAL CONDUCT WITH A CHILD UNDER 12 (sexual connection)
S132(1) Crimes Act 1961
A person
Has sexual connection
With a child
CHILD *
A person under the age of 12 years.
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.
Birth certificate produced by a parent.
ATTEMPTS *
S72 Crimes Act 1961
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.
Liability: SEXUAL CONDUCT WITH A CHILD UNDER 12 (attempted sexual connection)
S132(2) Crimes Act 1961
A person
Attempts
To have sexual connection
With a child
Liability: SEXUAL CONDUCT WITH A CHILD UNDER 12 (indecent act)
S132(3) Crimes Act 1961
A person
Does an indecent act
With a child
INDECENCY *
Indecency must be judged in light or the time, place, circumstances. It must be something more than trifling and be sufficient to warrant the sanction of the law.
R v DUNN
Indecency must be judged in light or the time, place, circumstances. It must be something more than trifling and be sufficient to warrant the sanction of the law.
R v COURT *
Indecency means conduct that right thinking people will consider an affront to the sexual modesty of [the complainant].
Liability: SEXUAL CONDUCT WITH A YOUNG PERSON UNDER 16 (sexual conduct)
S134(1) Crimes Act 1961
A person
Has sexual connection
With a young person
S134 DEFENCE *
S134A Crimes Act 1961
It is a defence if the person charged proves that:
- 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 and
- at the time of the act concerned he or she believed on reasonable ground that the young person was of or over the age of 16 and
- the young person consented
YOUNG PERSON *
S134 Crimes Act 1961
Young person means a person under 16 years.
Liability: SEXUAL CONDUCT WITH A YOUNG PERSON UNDER 16 (attempted sexual connection)
S134(2) Crimes Act 1961
A person
Attempts to have sexual connection
With a young person
Liability: SEXUAL CONDUCT WITH A YOUNG PERSON UNDER 16 (indecent act)
S134(3) Crimes Act 1961
A person
Does an indecent act
With a young person
Liability: INDECENT ASSAULT
S135 Crimes Act 1961
A person
Indecently assaults
Another person
ASSAULT *
S2 Crimes Act 1961
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.
INDECENT ASSAULT *
R v LEESON
The definition of indecent assault… is an assault accompanied with circumstances of indecency…”
R v NORRIS
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 to be acquitted even though the grounds of his belief were unreasonable.
R v LEESON
The definition of indecent assault… is an assault accompanied with circumstances of indecency…”
WHAT IS AN ACUTE COMPLAINT?
Reported within seven days of the sexual assault
WHAT IS A NON-ACUTE COMPLAINT?
Reported between seven days to six months of the sexual assault.
WHAT IS A HISTORIC COMPLAINT?
Reported after six months of the sexual assault
WHAT INFORMATION NEEDS TO BE ESTABLISHED AS PART OF INITIAL ACTION
- victim details and whereabouts (if not completed in person)
- brief circumstances of the alleged offence
- scene location
- offender’s description, whereabouts and mode of any travel
WHAT DOES A PRELIMINARY INTERVIEW ESTABLISH?
- brief outline of facts
- victim safety
- public safety
- urgent investigation needs (consider - potential for loss of evidence, medical circumstances, suspects likely actions)
WHAT IS THE PRIMARY PURPOSE OF A MEDICAL FORENSIC EXAMINATION?
The ASA victim’s well-being and safety is paramount. The victim’s physical, sexual and mental health and safety is the primary objective of a medical exam.
WHAT INFORMATION DO YOU NEED TO PROVIDE TO THE MEDICAL FORENSIC PRACTITIONER?
- age and gender of the victim
- when the sexual assault is believed to have occurred
- a brief outline of what info is known so far including whether drugs/alcohol are involved, victim’s injuries, level of intoxication, any other health concerns
- if relevant, the victim’s wishes about gender of the examining practitioner
- whether a child’s sexual assault complaint should be dealt with using adult procedure or vice versa (when necessary)
