Sexual Offences Flashcards
s128(1) Sexual Violation by Rape
s128(2) Sexual Violation by Unlawful Sexual Connection
A person
Rapes / Has unlawful sexual connection with
Another person
R v Koroheke
R v Cox
R v Gutuama
s128(2) - Definition of Rapes
Sexual Violation by Rape
Person A rapes person B if he penetrates her genitalia with his penis, without her consent and without believing on RGs that she was consenting.
And if he did believe in consent, that the grounds for such a belief were not reasonable (Subjective/Objective Test).
Must be done intentionally.
Includes the continuation of such acts where consent was withdrawn.
s128(3) - Sexual Connection
Sexual Violation by Unlawful Sexual connection
Introduction of a body part, or objects held or manipulated by, of one person into the genitalia or anus of another, or
The connection between the mouth/tongue of one person and a part of another person’s genitalia/anus, or
The continuation of such acts,
Without the complainant’s consent and
Without the Defendant believing on RGs that she was consenting
Or if he did believe in consent, that the grounds for such a belief were not reasonable (Subjective/Objective Test).
Defence: Genuine medical purposes.
Penetration
Of the slightest degree
Introduction
Of the slightest degree
Proof of Penetration
Complainant’s evidence
Defendant’s admissions
Medical evidence, including injuries and DNA evidence.
Penis
Includes the penis and testicles of a male. Includes surgically constructed or reconstructed organs analogous to naturally-occurring sex organs.
R v Koroheke
Genitalia
Includes the vagina and vulva of the female.
R v Koroheke
R v Koroheke – the genitalia comprise the reproduction organs, interior and exterior, and include the vulva and labia, both interior and exterior, at the opening of the vagina.
R v Koroheke
Consent
Conscious / voluntary agreement to something proposed by another. Needs to be true and valid.
R v Cox
Consent must be full, voluntary, free and informed given by a person in a position to form a rational judgment.
R v Cox
Tests for Consent
Subjective Test – was the complainant consenting?
Subjective Test 2 – Did the Defendant believe she was consenting?
Objective Test 3 – what would a reasonable person have believed if placed in the same position? (not meaning reasonable in the circumstances as the accused believed them to be).
R v Gutuama
R v Gutuama – 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.
R v Gutuama
Allowing sexual activity - s128A
A person does not consent to sexual activity just because they:
1) Do not protest or offer physical resistance.
2) Allow activity because force or threats of force to them or another person are applied
3) Fear the application of force.
4) Are unconscious or asleep.
5) Are drunk
6) Have intellectual, mental or physical impairment of such degree that they cannot consent.
7) Are mistaken about who the other person is.
8) Consent but are mistaken about the nature and quality of the sexual act.
s129(2) - Assault with intent to commit sexual violation
Assaults
Another person
with intent to commit sexual violation of the other person.
Person
Offence is gender-neutral and can be committed by a male or female.
The fact that the offender is a person is accepted by judicial notice or proved by circumstantial evidence.
Child
YP
Proof of age
Under 12 years, cannot fully consent. Objective Test will always fail, as no RP would believe in consent from a child.
Young Person – 13-15 years
Proof of age: R v Forrest & Forrest – in attaining proof of age, the Prosecution should use the best evidence possible in the circumstances.
Indecent Act
All forms of sexual activity with a child / young person other than sexual connection (Rape is Rape). Is an indecent act when child “consents” but becomes “assault” if child does not.
R v Court
Indecency means conduct that right-thinking people will consider an affront to the sexual modesty of the complaint.
R v Court
Assault
Act of intentionally applying/attempting to apply force to another person, directly or indirectly, or threatening by any act/gesture to apply such force, if the person making the threats has or causes the other to believe on reasonable grounds that he has the present ability to effect his threat.
Indecently assault (Child/YP)
An assault accompanied with circumstances of indecency – R v Leeson
Indecent Assault Child/YP - What must you prove:
Must prove that the Defendant:
Intentionally assaulted
In indecent circumstances
Intended the conduct
YP Offender Defences / not Defences
1) Prior to act concerned, took reasonable steps (reasonably required under the circumstances) to find out YP was of or over 16.
2) At the time of act believed on RGs that YP was of or over 16.
3) The YP consented.
Not a defence
a) That the child/young person consented
b) That Defendant thought they were over the required age.
s132(1)
s134(1)
A person
Has sexual connection with a child / young person
s132(2)
s134(2)
A person
Attempts to have sexual connection with a child / young person
s132(3)
s134(3)
A person
Does an indecent act on a child / young person
s135
Indecently assaults
Another person.
Attempts
Had intent to commit the offence AND did/omitted an act to accomplish his objective.
Requires Proximity.
Proximity
Started to commit the full offence, has gone beyond mere preparation. May include lying in wait, searching for, enticing, entering, possession materials for the commission of the crime.
Preparation vs Attempts
Preparation vs Attempts – s72(2) is a question of law – decided by the Judge at pre-trial. If agreed, the matter will go to trial for the Jury to decide if facts prove BRD offence.
Once proximity is reached, cannot withdraw
R v Harpur
Must focus on quality of defendant’s acts and the time, place and circumstance collectively to ascertain attempt. Independent acts viewed in isolation are preparatory (not attempts). Viewed together, they can amount to attempt.
R v Harpur
