Sexual Conduct with a Child Under 12

Question 1

Section and Penalty

Answer 1

CA61; S132:

(1) Sexual connection: 14 years
(2) Attempts to have sexual connection: 10 years
(3) Does an indecent act on a child: 10 years

Question 2

Elements

Answer 2

Sexual conduct with a child under 12
CA61; S132

• *1. A person:**
• Gender neutral

2. Has sexual connection:
- Definition (CA61; s2)
- Consent; R v Cox - 10 or 11 year old not able to consent save for exceptional and rare circs; R v Cox - not reasonable for adult to believe a child was consenting to sexual activity; (remember consent is not a defence, but there will be an element of it otherwise s128); R v Adams
- S132(4) - not a defence they believed the child was over the age of 12
- s 132(5) - not a defence that the child consented
RTS

• *3. With a child under 12:**
• *- R v Forrest and Forrest** - demonstrate the person’s age

**

ss(2): Attempts to have sexual connection with

ss(3): Does an indecent act on

Question 3

Sexual Connection

Answer 3

CA61; S2

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)

Question 4

Introduction/Penetration

Answer 4

CA61; S2(1A)

Introduction and penetration have the same meaning. Introduction to the slightest degree is enough to effect a connection.

Question 5

Proof of penetration is required

Answer 5

Proof of penetration may be established by:

• Complainant’s evidence
• Medical examination, including physical injuries and DNA evidence
• The defendant’s admissions.

Question 6

Genitalia

Answer 6

CA61; S2

Genitalia includes a surgically constructed or reconstructed organ, analogous to a naturally occurring male or female genitalia (whether the person concerned is male, female or of indeterminate sex).

Question 7

R v Koroheke Genitalia

Answer 7

R v Koroheke

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.

Question 8

Penis

Answer 8

CA61; S2

Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female or of indeterminate sex).

Question 9

Indecent Act Legislation

Answer 9

Section 2(1B):

For the purposes of this Act, 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.

Question 10

Consent of a child

Answer 10

• A distinction must be drawn between a child who is simply compliant and one who is truly consenting based on a full understanding of the act
• There is no statutory cut off age below which a child is deemed incapable of consenting - it depends on all the circumstances of the case
• Cox v R - The Court of Appeal held that it would only be in “exceptional and rare circumstances” that a child under 12 could give legal consent:

Question 11

Cox v R - 10 or 11 year old not able to consent save for exceptional and rare circs

Answer 11

Although we do not exclude the possibility that a child of ten or eleven may be able to give a full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare.

Question 12

Cox v R - not reasonable for adult to believe a child was consenting to sexual activity

Answer 12

Save in exceptional and rare circumstances … even when she indicates an agreement to the act occurring … no reasonable adult would have grounds for believing that a ten or eleven year old girl has the experience or maturity to understand the nature and significance of the act.

Question 13

Child

Answer 13

CA61; S132(6)

In this section,—
(a) child means a person under the age of 12 years

Question 14

R v Court

Answer 14

Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant]”.

Question 15

R v Dunn - judging indecency

Answer 15

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.”

Question 16

R v Dunn - Test for indecency

Answer 16

“The test for indecency is whether the conduct offend[s] against a reasonable and recognised standard of decency which … ordinary and reasonable members of the community ought to impose and observe in this day and age …”

Question 17

R v Forrest and Forrest

Proving Age

Answer 17

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”

In practice this generally involves producing the complainant’s birth certificate in conjunction with independent evidence that identifies the complainant as the person named in the certificate.

Question 18

Not a defence

Legislation

Answer 18

CA61; S132(4) and (5)

(4) - 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 years.
(5) - It is not a defence to a charge under this section that the child consented.

Question 19

If such an act is done with the consent of the child, it is immaterial whether:

Answer 19

• the offender does the act on the child
• the child does the act on the offender
• the act is mutual.

Question 20

No Presumption because of Age

Answer 20

S127 CA61

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