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Induction > Sexual Crimes - Lesson Notes > Flashcards

Sexual Crimes - Lesson Notes Flashcards

1
Q

What must be proved

A

There was an intentional act by the offender involving sexual connection AND
the complainant did not consent to the sexual act AND
the offender did not believe the complainant was consenting OR
If he did believe that she was consenting, the grounds for such a belief were not reasonable

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2
Q

Consent

A

Consent is a persons conscious and voluntary agreement to something desired or proposed by another

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3
Q

Under section 128 (4) does a husband have legal defence

A

No

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4
Q

Penalty, act, section, ingrediants of Rape and U/l sexual connection

A

20 years

Rape: 128(1)(a) - A person rapes another person
U/L sexual connection: 128(1)(b) - a person has unlawful sexual connection with another person

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5
Q

Section 128(2)

A

Person A rapes person B if person A has sexual connection with person B effected by the penetration of person B genitalia by person A penis

(a) without person Bs consent to the connection AND
(b) without believeing on reasonable grounds person B consents to the connection

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6
Q

Section 128(3)

A

Person A has u/l sexual connection with person B if person A has sexual connection with person B

(a) without person Bs consent to the connection AND
(b) without believeing on reasonable grounds person B consents to the connection

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7
Q

Proof of penetration

A

Proof of penetration may be established by:
The complaiants evidence
The medical examination (injuries/DNA)
The defendants admissions

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8
Q

Presumption of age

A

Section 127 CA 1961
There is no presumption of law that a person is incapable of sexual connection because of his or her age

(this means any person of any age is capable (in a legal sense) of being involved in sexual connection

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9
Q

Reasonable grounds test

what makes a sexual connection unlawful

A

Reasonable Grounds:
The establishing of reasonable grounds is a 3 step process
The crown must prove:
Subjective test 1: Absence of consent
What was the complainant thinking at the time, Was the complainant consenting
Subjective test 2: Belief in consent
If the complainant was not consenting did the offender believe the complainant was consenting, What was offender thinking at the time
Objective test: Reasonable grounds for belief in consent
If the offender believed the complainant was consenting, was that belief reasonable in the circumstance. what would a reasonable person have believed of placed in the same position as the defendant

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10
Q

Matters that do not constitue consent

A

Section 128A CA 1961
not protesting or offering physical resistance to use of force
application of force to self or others, threats of force to self or others, or fear of force to self or others
Asleep or unconscious
so affected by alcohol or drugs that they cannot consent
so affected by mental or physical impairment they cannot consent
mistaken ID
mistaken as to nature and quality of the act

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11
Q

Attempted Sexual Violation

A

Section 129(1) CA 1961 - Everyone who attempts to commit sexual violation is liable to imprisonment for a term not exceeding 10 years

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12
Q

Assault with intent to commit sexual violation

A

Section 129(2) CA 1961 - A person assaults another person with intent to commit sexual violation of the other person - 10 years

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13
Q

Proving intent

A

The offenders actions and words before, during, and after the event
The surrounding circumstances
the nature of the act itself

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14
Q

Examples of acts the constitute an attempt

A

lying in wait - searching for or following the victim
enticing the victim to go to the scene of the contemplated crime
u/l entry of a structure, vehicle or enclosure in which it is contemplated that the offence with be committed.

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15
Q

In an attempted sexual violation or assault with intent to commit, what must be proved

A

The defendant
intended to have sexual connection with the victim AND
the victim did not consent to the sexual connection AND
the defendant did not believe on reasonable grounds that the victim was consenting

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16
Q

Can a child under 12 consent

A

Consent is no defence for a child under 12 years

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17
Q

What are the differences between attempted sexual violation and assault with intent to commit sexual violation

A

an attempt to commit sexual violation does not necessarily involve an assault
• an assault with intent to commit sexual violation may not be sufficiently proximate to the full offence to constitute an attempt.

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18
Q

Attempts legislation

A

Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

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19
Q

How to prove intent

A
  • the offender’s actions and words before, during and after the event
  • the surrounding circumstances
  • the nature of the act itself.
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20
Q

Assault definition

A

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

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21
Q

What are the three offences under s132

A 
s 132(1) Sexual connection with a child - 14 years
s 132(2) Attempted sexual connection with a child - 10 years
s 132(3) Indecent Act on a child - 10 years
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22
Q

What 2 things are not a defence under s 132

A

It is not a defence under 132 that the person charged believed that the child was or over 12 years
It is not a defence under 132 that the child consented

23
Q

s 132(6)

A

(a) child means a person under 12

(b) doing an indecent act on a child includes indecently assaulting a child

24
Q

Indecency case law

A

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

25
Q

What are the 3 offences under s 134

A

134(1) - Sexual connection with a young person - 10 years
134(2) - Attempted sexual connection with a young person - 10 years
134(3) - Indecent Act on a young person - 7 years

26
Q

Under s 134 what is a young person

A

134(6)(a) means a person under the age of 16 years

134(6)(b) doing an indecent act on a young person includes indecently assaulting a you person

27
Q

Defence under 134

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
  • 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
  • the young person consented.
    The ANDS must be included otherwise not a defence
28
Q

Act Section and Penalty of Indecent Assault

A

Section 135 CA 1961 - 7 years

29
Q

Indecent Assault Case law

A

R v Leeson

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

30
Q

What must be proved in Indecent Assault

A
  • 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.
31
Q

Consent in relation to indecent assault - who can consent, who cannot

A

An adult can consent to an indecent assault, however a person under 16 years cannot

32
Q

Act, Section, Penalty and legislation of Incest

A

Section 130, Crimes Act 1961 - 10 years
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.
(the offender must be over the age of 16 years)

33
Q

What is not a defence to incest

A

Consent - Incest is carried out with the consent of both parties, if there is no consent then a charge of sexual violation

34
Q

Can adoptive parents be charged with Incest

A

Yes

35
Q

Can step parent be charged with Incest

A

No - may instead come under sexual connection with a dependent family member

36
Q

What is essential for a charge of Incest

A

Knowledge of the relationship before or at the time of the sexual connection - crown to prove knowledge

37
Q

What are the 3 offences under 131 CA 1961

A

131(1) - Sexual connection with a dependent family member under 18 years - 7 years
131(2) - Attempted sexual connection with a dependent family member under 18 years. - 7 years
131(3) - Indecent Act on a dependent family member - 3 years

38
Q

Can the dependent family member be charged

A

No

39
Q

What is not considered a defence under 131

A

Not a defence if the dependent family member consented

40
Q

Can a police officer pose as a person under 16 for the purposes of this act

A

Yes - as long as the offender believed that the factitious person was a person under 16

41
Q

What is a defence under s131B

A

a) before the time he or she took the action concerned, he or she had taken reasonable steps to find out whether the young person was of or over the age of 16 years: AND
(b) at the time he or she took the action concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years.

42
Q

Victim protection - victims character

A

Section 44 of the Evidence Act 2006 covers evidence of sexual experience of complainants in sexual cases.
Generally, no evidence or questions (except with the judge’s permission) can be put to the complainant about their sexual experience with any person other than the defendant.

43
Q

Victim protection - victims address

A

Section 87 of the Evidence Act 2006 protects a witness from having to state their address and having questions put to them about that information - includes name of town or community - however judge can determine if these facts are relevant to the facts in issue

44
Q

Victim protection - victims occupation

A

Section 88 of the Evidence Act 2006 protects a complainant from having questions put to them or to a witness about the complainant’s occupation or having any evidence given / statements / remarks made about complainants occupation.
However, an application can be made to the judge to disclose this information in court.

45
Q

Corroborative evidence

A

Under section 121 Evidence Act 2006 provides that in any criminal proceeding the complainants evidence does not have to be corroborated - especially important in sexual cases.

46
Q

Can a previous witness statement be admissible

A

Yes - if the statement is consistent with the victims evidence if the victims veracity is being challenged.

47
Q

Advantages of video recorded interviews

A
  • greater quality and quantity of information obtained
  • minimising trauma to the witness by simplifying the process and having their interview played as their evidence in chief
  • reducing contamination by the interviewer through the process of transposing the interview into a statement
  • providing a valuable means for the witness to refresh their memory before judicial proceedings
48
Q

For the purposes of the evidence act what is the age of a child

A

(for the purposes of the Evidence Act, a child is a person under 18 years of age)

49
Q

What are the courts expectations in regards to evidence by a child

A

That the evidence will be presented by video, unless there are exceptional circumstances

50
Q

Under 28 of the Evidence Regulations 2007, what must be done with a video record

A

Ensure transcript is prepared and provided to defence council as soon as practicable after the defendant pleads not guilty

51
Q

When may a person be regarded as a member of a household when they do not live in the same house

A

When they are so closely connected to with the household - determined by frequency and duration of the visits - whether the person has familial relationship with the victim

52
Q

What is a sexual case

A

Sexual case means a criminal proceeding in which a person is charged with or waiting sentencing or otherwise dealt with for an offence against any provisions - 128 - 142 or 144 ca 1961

Any other offence against the person of a sexual nature

53
Q

At what stages of an investigation might a specialist sexual assay support worker be available to involved with a victim

A

Initial point of contact, right the way through the investigation, significant decisions making points, medical exa, formal interview and court

Induction (50 decks)

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