Sexual Assaults Flashcards
SEXUAL VIOLATION BY RAPE
Section 128(1)(a), Crimes Act 1961
- A person
- Rapes
- Another person
SEXUAL VIOLATION BY UNLAWFUL SEXUAL CONNECTION
Section 128(1)(b), Crimes Act 1961
- A person
- Has unlawful sexual connection
- With another person
ASSAULT WITH INTENT TO COMMIT SEXUAL VIOLATION
Section 129(2), Crimes Act 1961
- A person
- Assaults
- Another person
- With intent to commit sexual violation of the other person
SEXUAL CONDUCT WITH A CHILD UNDER 12
Section 132, Crimes Act 1961
• A person
(1) Has sexual connection with
(2) Attempts to have sexual connection with
(3) Does an indecent act on
• A child
SEXUAL CONDUCT WITH A YOUNG PERSON UNDER 16
Section 134, Crimes Act 1961
• A person (1) Has sexual connection with (2) Attempts to have sexual connection with (3) Does an indecent act on • A young person
INDECENT ASSAULT
Section 135, Crimes Act 1961
- A person
- Indecently assaults
- Another person
R v Koroheke - Genitalia
The genitalia comprise the reproduction organs,
interior and exterior … they include the vulva [and]
the labia, both interior and exterior, at the opening
of the vagina
R v Cox - Consent
Consent must be “full, voluntary, free and informed
… freely and voluntarily given by a person in a position to form a rational judgment.”
R v Gutuama - Consent
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”.
R v Forrest and Forrest - Proving Age
“The best evidence possible in the circumstances
should be adduced by the prosecution in proof of
[the victim’s] age.”
R v Court - Indecency
Indecency means “conduct that right-thinking
people will consider an affront to the sexual
modesty of [the complainant]”.
R v Dunn - Indecency
indecency must be judged in light of the time, place
and circumstances. It must be something more than
trifling, and be sufficient to “warrant the sanction of
the law.”
R v Leeson - Indecent Assault
“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.
Define Sexual Connection
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; or
(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)
Define Penis
The male reproductive organ. Penis includes any surgically constructed or reconstructed organ comparable to a naturally occurring penis (whether the person concerned is male, female, or of indeterminate sex)
Define Genitalia
Genitalia includes the penis and testicles of a male, and the vagina and vulva of a female. The definition also includes surgically constructed or reconstructed organs to naturally occurring male or female genitalia (whether the person concerned is a male, female or indeterminate sex).
What are some circumstances that allowing sexual activity does not amount to consent?
- Lack of protest or offering physical resistance to the activity of out fear
- Due to force applied to him or her or some other person OR the threat of force to him or her or some other person OR or fear of force to him or her or some other person
- Being asleep or unconscious
- Affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity
- Affected by an intellectual, mental or physical impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity
- Mistaken about who the other person is (twins, etc)
- Mistaken as to nature and quality of the act (fake medical exam)
In establishing that sexual connection is unlawful there is a subjective/objective test that the Crown must prove relating to consent. List these 3 steps and your understanding of them.
Step 1 – Subjective Test - The complainant did not consent to the sexual act. Whether or not the complainant was consenting is a subjective test from the complainants’ point of view. What was the complainant thinking at the time? Was she consenting?
Step 2 - Subjective Test - The offender did not believe the complainant was consenting. If she wasn’t consenting did the offender believe she was consenting. What was the offender thinking at the time?
Step 3 – Objective Test - If he did believe she was consenting the grounds for such belief were not reasonable. I.e. What would a reasonable person have believed if placed in the same position as the defendant?
What is the defense under s134A(1) CA 1961
(1) It is a defense to a charge under section 134 if the person charged proves that, -
(a) 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 years; and
(b) at the time of the act concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years; and
(c) the young person consented.
Define Indecent Act s2 CA 1961
One person does an indecent act on another person whether he or she
(a)
does an indecent act with or on the other person; or
(b)
induces or permits the other person to do an indecent act with or on him or her.
R v Koroheke - Consent
It is important to distinguish between consent that is freely given and the 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 co-operate, is not true consent.
R v Harpur - Attempts
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”.
R v Harpur -
“[The Court may] have regard to the conduct viewed cumulatively up to the point when the conduct in question stops …the defendant’s conduct [may] be considered in its entirety. Considering how much remains to be done … is always relevant, though not determinative.”
Attempts to Commit Sexual Violation - Name, act, section, elements
Attempts to Commit Sexual Violation - Section 129(1) CA1961
- Any Person
- Who attempts to
- Commit sexual Violation of
- Another person
