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CIB007 Sex Offences > SEX OFFENCES > Flashcards

SEX OFFENCES Flashcards

1
Q

What is sexual violation in general terms?

A

Non-consensual sexual connection with another person

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2
Q

What is the maximum penalty for sexual violation?

A

20 years

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3
Q

In all cases of sexual violation, what must the Crown 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
  • if the offender did believe the complainant was consenting, the grounds for such a belief were not reasonable
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4
Q

Does a spouse have a legal defence for sexually violating their spouse?

A

No -S128(4) Crimes Act 1961

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5
Q

Must someone convicted of sexual violation be sentenced to imprisonment?

A

Yes, unless having regard to 128B(3)(a) and (b) the court thinks the person should not be sentenced to imprisonment due to (a) the particular circumstances of the person convicted and (b) the particular circumstances of the offence including the nature of the conduct constituting it

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6
Q

Definition: SEXUAL VIOLATION

A

S128(1) Crimes Act 1961
The act of a person who
(a) rapes another person or
(b) has unlawful sexual connection with another person

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7
Q

Definition: RAPE

A

S128(2) Crimes Act 1961
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 ground that person B consents to the connection

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8
Q

Definition: UNLAWFUL SEXUAL CONNECTION

A

Section 128(3) Crimes Act 1961
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 ground that person B consents to the connection

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9
Q

Definition: SEXUAL CONNECTION

A

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
(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 a kind described in paragraph (a) or paragraph (b)

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10
Q

How much penetration is sufficient to prove sexual violation?

A

S2 Crimes Act 1961
‘introduction to the slightest degree is enough to effect a connection’

The extent of penetration is not relevant; any degree of penetration, no matter how slight or fleeting is sufficient.

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11
Q

How do you prove penetration?

A
  • complainant’s evidence
  • medical examination, including physical injuries and DNA evidence
  • the defendant’s admissions
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12
Q

Definition: GENITALIA

A

The genitalia or genitals include the penis and testicles of a male, and the vulva and vagina of a female.

S2 Crimes Act 1961
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)

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13
Q

R v KOROHEKE

A

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

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14
Q

Which case law defines genitalia?

A

R v KOROHEKE
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

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15
Q

Is penetration of the vagina required for rape?

A

No, penetration of the vulva is sufficient.

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16
Q

What constitutes oral sexual connection?

A

Any touching of a person’s genitalia or anus with another person’s mouth or tongue is sufficient. It is not necessary for there to be penetration.

17
Q

In relation to sexual violation, what does ‘continuation’ mean?

A

Sexual activity is started consensually but consent is later withdrawn and the offender continues regardless.

18
Q

How old does someone need to be to be presumed capable of sexual connection?

A

S127 Crimes Act 1961
There is no presumption of law that a person is incapable of sexual connection because of his or her age.

It is not a defence to say the complainant was incapable due to their age.

19
Q

What must the Crown prove in relation to consent?

A
  • the complainant did not consent to the sexual act (subjective) and
  • the offender did not believe the complainant was consenting (subjective) or
  • if he did believe she was consenting, the grounds for such a belief were not reasonable (objective)
20
Q

Definition: CONSENT

A

A person’s conscious and voluntary agreement to something desired or proposed by another.

21
Q

R v COX

A

Consent must be ‘full, voluntary, free and informed… freely and voluntarily given by a person in a position to form a rational judgement’

22
Q

What case law relates to consent?

A

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’

23
Q

What is reluctant consent?

A

True consent that is given reluctantly or hesitantly and can be regretted afterwards. As long as the consent is given without fear of force or the result of actual or threatened force, the sexual connection is not unlawful.

24
Q

When is consent relevant?

A

At the time of the sexual connection.

25
Q

What is the objective test?

A

What would a reasonable person have believed if placed in the same position as the defendant?

26
Q

What is the subjective test?

A

Whether the defendant believes the complainant was consenting.

27
Q

R v GUTUAMA

A

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’

28
Q

List the matters not constituting consent

A
  • lack of protest or resistance
  • consent given due to force applied to the complainant or some other person or the threat of force applied to them or some other person or the fear of the application of force to them or some other person
  • being unconscious
  • being affected by alcohol or drugs to the extent that they cannot consent or refuse to consent
  • being 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
  • being mistaken about the nature and quality of the act
29
Q

R v KOROHEKE (consent)

A

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.

30
Q

Liability: SEXUAL VIOLATION BY RAPE

A

S128(1)(a) Crimes Act 1961
A person
Rapes
Another person

31
Q

Definition: PERSON

A

Accepted by judicial notice or proved by circumstantial evidence.

32
Q

Liability: SEXUAL VIOLATION BY UNLAWFUL SEXUAL CONNECTION

A

S128(1)(b) Crimes Act 1961
A person
Has unlawful sexual connection
With another person

33
Q

What must a person do to be guilty of an attempt?

A
  • intend to commit the offence and

- take a real and substantial step towards achieving that aim

CIB007 Sex Offences (4 decks)

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