Sexual Offence Definitions Flashcards
What must be proved in all cases of sexual violation?
- That there was an intentional act by the offender involving sexual connection with the complainant, 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 she was consenting, the grounds for such a belief were not reasonable.
Person
Proven by Judicial notice or circumstantial evidence.
Sexual violation defined
Section 128, Crimes Act 1961
(1) Sexual violation is the act of a person who -
(a) rapes another person; or
(b) has unlawful sexual connection with another person.
Rape
CA.61 S.128(2)
Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis-
a) without person B’s consent to the connection; and
b) without believing on RG that person B consents to the connection.
Penetration
Section 2 (1A). CA 61
Introduction to the slightest degree is enough to effect a connection.
Proof of penetration may be established by the complainant’s evidence, medical examination, defendant’s admissions.
Sexual Connection
CA.61 S.2
a) connection effected by the introduction into the genitalia or anus of one person (otherwise than for genuine medical purposes) of
- a part of the body of another person
- an object manipulated by another person
b) connection between the mouth or tongue of one person and another person’s genitalia or anus
c) the continuation of connection in a kind described
Proof of penetration is required, 3 ways of proving:
- Complainant’s evidence
- Medical exam
- Accused’s admissions
Genitalia
R V KOROHEKE
The genetalia comprise the reproductive organs, interior and exterior … they include the vulva and labia, both interior and exterior at the opening of the vagina.
Penis S2 CA61:
Includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female or of indeterminate sex).
Consent
A person’s conscious and voluntary agreement to something desired or proposed by another.
The Crown must prove:
- That there was an intentional act by the offender involving sexual connection with the complainant, and;
- The complainant did not consent to the sexual act (a subjective test), and;
- The offender did not believe the complainant was consenting (a subjective test), or;
- If he did believe she was consenting, the grounds for such a belief were not reasonable (an objective test).
R v COX
Consent must be full, voluntary, free and informed . . . freely and voluntarily given by a person in a position to form a rational judgement.
Another person
It is a gender neutral offence; given the wide statutory definition of genitalia, the person’s biological gender is not relevant.
Attempts
Section 72 CA 61
Having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object.
They are guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
Eight Matters that Do Not Constitute Consent CA.61 S.128A
- Lack of protest or resistence
- Force, threat or fear of force
- Asleep or unconscious
- Affected by alcohol or drugs
- Intellectual, mental or physical impairment
- Mistake as to identity
- Mistake as to nature and quality of act
- Sexual activity to which S128A applies and indecent assault.
Unlawful Sexual Connection CA.61 S128(3)
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 B consents to the connection
Prove Age
R V FORREST AND FORREST
The best evidence possible in the circumstance should be adduced by the prosecution in proof of the victims age. In practice usually birth certificate and independent evidence that identifies victim as person named.
“Child” in relation to Crimes Act 1961
Person under 12 years.
R v Cox
(Lots and lots of Cox!)
Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment
Application: consent
R v Gutuama
(Gutuama - Gucci - Gucci shoes - SHOES)
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”. Application: consent
R v Forrest and Forrest
(Forest, trees, paper)
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age Application: proving age
R v Court
(Court - tennis - A tennis coach holds his student’s bottom while she serves - says it helps with her serve)
(Application: indecency)
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of (the complainant)” Application: indecency
R v Dunn
(‘Dunn’ in light of the time, place and circumstances - and it didn’t involve trifle)
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” Application: indecency
R v Leeson
(Rhymes with Neeson - “I will find you. And I will kill you. For doing an indecent act on me.”)
The definition of ‘indecent assault’ “… is an assault accompanied with circumstances of indecency … Application: indecent assault
R v Norris
(Who would be brave enough to convict Chuck Norris of indecent assault?)
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
Application: indecent assault: defence
