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DDC 06/2022 > Sexual Offence Liabilities, Case Law and definitions > Flashcards

Sexual Offence Liabilities, Case Law and definitions Flashcards

1
Q

Section 128(1)(a) Crimes Act 1961

A

Sexual Violation by Rape

  • A person
  • Rapes
  • Another person
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2
Q

Section 128(1)(b) Crimes Act 1961

A

Sexual Violation by Unlawful Sexual Connection

  • A person
  • Has unlawful sexual connection
  • With another person
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3
Q

Section 129(2) Crimes Act 1961

A

Assault with intent to commit sexual violation

  • A person
  • Assaults
  • Another person
  • With intent to commit sexual violation of the other person
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4
Q

Section 132 Crimes Act 1961

A

Sexual Connection with a child under 12

  • A person
    1) has sexual connection with
    2) Attempts to have sexual connection with
    3) Does an indecent act on
  • A child
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5
Q

Section 134 Crimes Act 1961

A

Sexual Conduct with a Young Person Under 16

  • A person
    1) Has sexual connection with
    2) Attempts to have sexual connection with
    3) Does an indecent act on
  • A young person
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6
Q

Section 135 Crimes Act 1961

A

Indecent Assault

  • A person
  • Indecently Assaults
  • Another person
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7
Q

R V KOROHEKE - Genetalia

A

Application: Genitalia

The gentalia comprise the reproductive organs, interior and exterior. They include the vulva [and] the labia, both interior and exterior, at the opening of the vagina.

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8
Q

R V COX

A

Application: Consent

Consent must be “full, voluntary, free and informed. Freely and voluntarily given by a person in a position to form a rational judgement”

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9
Q

R V GUTUAMA

A

Application: Consent

Under the objective test the crown must prove that “no reasonable person in the accused’s shoes could have that that [the complainant] was consenting”

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10
Q

R V FORREST AND FORREST

A

Application: Proving age

“the best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victims] age”

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11
Q

R V COURT

A

Application: Indecency

conduct that right-thinking people will consider an affront to the sexual modesty of the complainant

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12
Q

R V DUNN

A

Application: Indecency

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”.

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13
Q

R V LEESON

A

Application: Indecent Assault

The definition of ‘indecent assault’ is an assault accompanied with circumstances of indecency.

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14
Q

R V NORRIS

A

Application: Indecent Assault (defence)

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.

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15
Q

Sexual violation by rape - act and section

A

Crimes Act 1961, Section 128(1)(a)

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16
Q

Sexual violation by rape - ingredients

A

Crimes Act 1961, Section 128(1)(a)

  • A person
  • Rapes
  • Another person
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17
Q

Sexual violation by unlawful sexual connection - act and section

A

Crimes Act 1961 - Section 128(1)(b)

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18
Q

Sexual violation by unlawful sexual connection - ingredients

A

Crimes Act 1961 - Section 128(1)(b)

  • A person
  • Has unlawful sexual connection
  • With another person
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19
Q

Assault with intent to commit sexual violation - act and section

A

Crimes Act 1961 - section 129(2)

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20
Q

Assault with intent to commit sexual violation - ingredients

A

Crimes Act 1961 - section 129(2)

  • A person
  • Assaults
  • Another person
  • With intent to commit sexual violation of the other person
21
Q

Sexual conduct with a child under 12 - act and section

A

Crimes Act 1961 - section 132

22
Q

Sexual conduct with a child under 12 - ingredients

A

Crimes Act 1961 - section 132

  • A person
  • (a) Has sexual connection with OR
  • (b) attempts to have sexual connection with, OR
  • (c) Does an indecent act on
  • A child
23
Q

Sexual conduct with a young person under 16 - act and section

A

Crimes Act 1961 - Section 134

24
Q

Sexual conduct with a young person under 16 - ingredients

A

Crimes Act 1961 - Section 134

  • A person
  • (a) has sexual connection with, OR
  • (b) Attempts to have sexual connection with, or
  • (c) Does an indecent act on
  • A young person
25
Q

Indecent assault - act and section

A

Crimes Act 1961 - Section 135

26
Q

Indecent assault - ingredients

A

Crimes Act 1961 - section 135

  • A person
  • Indecently assaults
  • Another person
27
Q

R V HARPUR

A

The court may view the conduct cumulatively up to the point the conduct ends to determine whether it is sufficient for an attempt

28
Q

R V KOROHEKE - Consent

A

Distinguish between consent freely given and submission by a woman to something unwanted but unavoidable (for example submission because she is scared - not true consent)

29
Q

COX V R - Children and consent

A

We do not exclude the possibility that 10 and 11 year olds can consent to sex - though it is rare. Even where she indicates agreement, no reasonable adult would have grounds to believe she could consent.

30
Q

What must prosecution prove in indecent assault cases?

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.

If the issue of consent is raised, the prosecution must prove:

  • The complainant did not consent to the assault, and:
  • The defendant did not honestly believe the complainant was consenting
31
Q

What must the prosecution prove for all cases of sexual violation?

A
  • 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
32
Q

How can proof of penetration be established?

A
  • Through the complainants evidence
  • Medical examination
  • The defendants admissions
33
Q

Definition: Genetalia

A

Include the penis and testicles of a male and the vagina and vulva of a female

34
Q

What is a ‘continuation’?

A

It captures situations where sexual activity is commenced consensually, but consent is later withdrawn

35
Q

Definition: Consent

A

A persons conscious and voluntary agreement to something proposed by another

36
Q

When is consent relevant?

A

The material time where consent and believe in consent is to be considered is at the time the act actually took place

37
Q

Rape defined:

A

Sexual connection that involves the penetration of the complainants genetalia by the offenders penis (all other types are captured in 128(1)(b)

38
Q

Sexual Connection Defined:

A

Section 128(1)(b) captures all forms of non consensual connection, other than rape.

Therefore it includes:

  • Penetration of a persons genitalia or anus bu a part of another persons body (such as finger in the vagina or penis in the anus)
  • Penetration of a persons genitalia or anus by an object held or manipulated by the other person
    • Touching of a persons genitalia or anus by another persons mouth or tongue
39
Q

To be guilty of an attempt to commit an offence what must we prove?

A
  • That the defendant INTENDED to commit the offence AND
  • He/She took a REAL and SUBSTANTIAL step towards achieving that aim

Section 72 attempts

40
Q

R V COLLISTER

A

Intent derived from circumstantial evidence:

  • Surrounding circumstances
  • Words / actions from the defendant before, during and after
  • The nature of the act itself
41
Q

What must you prove for assault with intent to commit sexual violation?

A

That at the time the defendant assaulted the complainant, he:

  • Intended to have sexual connection with the complainant AND
  • The complainant did not consent to the sexual connection AND
  • The defendant did not believe on reasonable grounds that the complainant was consenting
42
Q

Consent of a child

A

There is no statutory “cut off” age below which a child is deemed incapable of consenting - therefore whether they are consenting will be deemed on the circumstances.

COX V R held that it would exceptional and rare that a child under 12 could give consent.

The younger the child, the less likely that any consent argument will be valid

CONSENT IS NOT A DEFENCE FOR SEXUAL CONDUCT WITH A CHILD UNDER 12

43
Q

Definition: Child

A

A person under the age of 12 years old - gender neutral

44
Q

Definition: Indecency

A

An act that is “indecent” has sexual connotations and involves conduct directed at a person that is offensive to public moral values

45
Q

Section 134A Defence

A

Defence to Sexual Conduct with a Young Person Under 16

It is a defence if the defendant:

  • Took all reasonable steps to ascertain that the young person was at least 16 AND
  • They believed on reasonable grounds that the young person as at least 16 AND
  • The young person consented
46
Q

What must the prosecution prove for 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
47
Q

Is belief in consent sufficient for indecent assault?

A

An honest belief alone is sufficient even if it is not reasonable

48
Q

Timings of medical forensic examinations - What are they?

A

Acute - Reported within 1-7 days - A medical examiner must be contacted ASAP especially if it’s within 24 hours

Non Acute - Reported within 7 days - 6 months - Refer to SAATS regardless of time delay.

Historic - 6 Months plus afterward - Still refer to SAATS to determine whether they may benefit from their care

DDC 06/2022 (15 decks)

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