Sexual Crimes

Question 1

Define unlawful sexual connection.

Answer 1

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 grounds that person B consents to the connection.

Question 2

Define sexual connection.

Answer 2

Section 2, 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; 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 3

Define genitalia.

Answer 3

S2, CA 1961
Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male or female or of indeterminate sex).

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 4

Explain the provisions relating to matters that do not constitute consent?

Answer 4

Crimes Act 1961, Section 128A
Circumstances in which a person allows sexual activity but it does not amount to consent:
- lack of protest or resistance
- force, threat or fear of violence
- asleep or unconscious
- affected by alcohol or drugs
- intellectual, mental or physical impairment
- mistaken as to identity
- mistaken as to nature and quality of act

Question 5

Define Assault, including Act and Section.

Answer 5

Crimes Act 1961, Section 2

Assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose

Question 6

Discuss proof of age using case law.

Answer 6

R v Forrest and Forrest

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

Question 7

Define ‘indecency’ using case law.

Answer 7

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

Question 8

What does the defendant need to prove for a statutory defence to a charge under Crimes Act 1961, Section 134A?

Answer 8

• they had taken reasonable steps to ascertain that the young person was at least 16
  AND
• they believed on reasonable grounds that the young person was at least 16
  AND
• the young person consented.

Question 9

Define ‘indecent assault’ using case law.

Answer 9

Indecent Assault
R v Leeson
The definition of “indecent assault” … is an assault accompanied with circumstances of indecency…

Question 10

What must be proved in all sexual violation cases?

Answer 10

• Intentional act by offender involving sexual connection with complainant
  AND
• complainant did not consent to sexual act
  AND
• offender did not believe complainant consented
  OR
  did believe but grounds were not reasonable

Question 11

In section 132, CA 1961, what does child mean?

Answer 11

a person under 12

Question 12

What are the defences listed in 134(4) and (5).

Answer 12

(4) Married to the young person

(5) The young person cannot be charged as a party to the offence if the offender was 16 yrs or over at the time

Question 13

Fully outline the offence of Incest?

Answer 13

s130, CA 1961
Incest
10 years

(1) Sexual connection is incest if
(a) it is between 2 people whose relationship is that of parent and child, siblings, half-siblings, or grandparent and grandchild, AND
(b) the person charged knows of the relationship

Question 14

Define person.

Answer 14

Person

Gender neutral. Proven by judicial notice or circumstantial evidence.

Question 15

Define penetration.

Answer 15

Penetration
s2(1A), CA 1961
Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection.

Question 16

Define penis.

Answer 16

s2, CA 1961
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 17

Define sexual violation.

Answer 17

s128(1), CA 1961

(1) Sexual violation is the act of a person who
(a) rapes another person, or
(b) has unlawful sexual connection with another person

Question 18

Define child.

Answer 18

Child
s132(6)(a), CA 1961
Child means a person under the age of 12 years.

Question 19

Define young person.

Answer 19

Young person
s134(6)(a), CA 1961
Young person means a person under the age of 16 years

Question 20

R v Gutuama

Answer 20

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.

Question 21

List the discussion points for the element has unlawful sexual connection.

Answer 21

Unlawful sex conn, s128(3)
Sexual connection, s2
Penetration,s2(1A)
Proof of penetration x 3
Genitalia, s2 (if applicable)
R v Koroheke (if applicable)
Consent
R v Cox
Matters not constituting consent
Reasonable ground 3 step process
R v Gutuama

Question 22

What are the three ways in which proof of penetration may be provided.

Answer 22

Proof may be provided by

• complainants evidence
• medical examination (DNA, injuries)
• accused’s admissions

Question 23

Outline the titles and sections, subsections for child and young person sexual offences.

Answer 23

132(1) sexual conduct with a child
132(2) sex conduct with child attempt
132(3) sex conduct with child indecent act

134(1) sex conduct with young person
134(2) sex conduct young person attempt
134(3) sex conduct young person indecent act