Sexual Conduct with Children/Young Persons

Question 1

Sexual conduct with a child under 12 legislation

Answer 1

Section 132, Crimes Act 1961

(1) Every one who has sexual connection with a child is liable to imprisonment for a term not exceeding 14 years.
(2) Every one who attempts to have sexual connection with a child is liable to imprisonment for a term not exceeding 10 years.
(3) Every one who does an indecent act on a child is liable to imprisonment for a term not exceeding 10 years.
(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.
(6) In this section,— (a) child means a person under the age of 12 years; and (b) doing an indecent act on a child includes indecently assaulting the child.

Question 2

Cox v R - Child

Answer 2

“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 3

Cox v R - Child - belief in consent

Answer 3

“Save in exceptional and rare circumstances … even where 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.”

Note: Even in the unlikely event that a child’s consent is sufficient to provide a defence to sexual violation, that consent is no defence to a charge of sexual conduct with a child under 12

Question 4

R v Forest and Forest

Answer 4

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

Note: 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. Ideally the independent evidence will be that of a parent, but that will not always be possible.

Question 5

Indecent Act on a child - Section 2 definition

Answer 5

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 6

‘indecent act’ meaning

Answer 6

Generally accepted to be an act accompanied by circumstances of indecency.

Question 7

R v Court

Answer 7

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

Question 8

The objective test for indecency

Answer 8

“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…”

Time, place, circumstance

Question 9

Sexual conduct with young person Legislation

Answer 9

Section 134 - Crimes Act 1961

(1) Every one who has sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.
(2) Every one who attempts to have sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.
(3) Every one who does an indecent act on a young person is liable to imprisonment for a term not exceeding 7 years.
(4) No person can be convicted of a charge under this section if he or she was married to the young person concerned at the time of the sexual connection or indecent act concerned.
(5) The young person in respect of whom an offence against this section was committed cannot be charged as a party to the offence if the person who committed the offence was of or over the age of 16 years when the offence was committed.
(6) In this section,— (a) young person means a person under the age of 16 years; and (b) doing an indecent act on a young person includes indecently assaulting the young person.

Question 10

It may provide a defence to a charge under s134 if the defendant proves that before the time of the sexual activity: (3 things)

Answer 10

• they had taken reasonable steps to ascertain that the young person was of or over the age of 16, and
• at the time of the sexual activity they believed on reasonable grounds that the young person was of or over the age of 16, and
• the young person consented.

Question 11

Reasonable steps to find out victims age

Answer 11

The defendant must show what steps they took to ascertain the young person’s age, and satisfy the court that these steps were all that could be reasonably required of them in the circumstances

Question 12

Indecent Assault Legislation

Answer 12

Section 135

Every one is liable to imprisonment for a term not exceeding 7 years who indecently assaults another person.

Question 13

R v Leeson

Answer 13

“The definition of ’indecent assault’ … is an assault accompanied with circumstances of indecency …”

Question 14

In cases of indecenct assault the prosecution must prove that:

Answer 14

• the defendant intentionally assaulted the complainant
• the circumstances accompanying the assault were indecent
• the defendant intended the conduct that a reasonable person would find indecent.

Question 15

Indecent Assault - If the issue of consent is raised on the evidence the prosecution must prove beyond reasonable doubt a further two elements:

Answer 15

• the complainant did not consent to the assault; and
• the defendant did not honestly believe the complainant was consenting.

Question 16

Indecent Assault - Belief in consent - what degree of belief is required?

Answer 16

With sexual violation, an honest belief in consent is not sufficient unless there are reasonable grounds for that belief; with indecent assault, an honest belief alone is sufficient even if not reasonable.

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..