sexual assault Flashcards
provide the section 5(1) definition of Sexual assault
according to section 5(1)
Any person (A) who unlawfully and intentionally sexually violates a complainant (B) without B’s consent, is guilty of an offence of sexual assault
provide the section 5(2) definition of sexual assault
a person (A) who unlawfully and intentionally inspires a belief in a complainant (B) that B will be sexually violated, is guilty of the offence of sexual assault
what are the elements of sexual assault
act of sexual violation [s5(1)]
unlawfulness
intent
the complainant
inspiring a belief [s5(2)]
describe the sexual violation element of sexual assault [s5(1)]
s1(1) refers to cases not involving sexual penetration
describe the inspiring a belief element of sexual assault [s5(2)]
s1(1) def of sexual violation
same principles as assault:
threat of imminent harm
threat must be personal violence
victim must subjectively believe that they will be sexually violated
can be physical act, gesture or verbal threat
what does the complainant element of sexual assault entail
alleged victim of sexual offence
what does the unlawfulness element of sexual assault entail
can be committed by any person
defences are
consent:
applies to section 5(1) definition
does not apply to the s5(2) definition: you cannot consent to inspire a belief of sexual assault
s1(3) gives circumstances where someone does not voluntarily or without coercion agree to sexual violation
s57 statutory presumption that children under age of 12 and mentally disabled cannot give consent
s56(1) marital relationship not a defence
what does the intent element of sexual assault entail
dolus required
dolus eventualis is sufficient
x must know/foresee that Y did not consent to sexual assault
describe the lavenstein v frankel case
The Issue dealt with the constitutionality of section 18 of the CPA
