Sexual Offences Flashcards
Explain Section 127 in relation ‘No presumption because of age’
Section 127
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
Ingredients for Section 128
Sexual Violation by Rape Section 128(1)a - 20yrs
A person Rapes Another person *********************************** Sexual Violation by UL SC Section 128(1)b - 20yrs
A person
Has UL SC
Another person
Explain Section 128A - Allowing sexual activity does not amount to consent in some circumstances
MA FAMILA
M.A.F.A.M.I.L.A
Section 128A outlines situations where any apparent consent will not be valid, including, for example:
- Where a person SUBMITS to sexual activity AS A RESULT OF FEAR or FORCE, or
- Is unaware of the conduct because he or she is ASLEEP or UNCONSCIOUS.
********** - Lack of protest or resistance
- 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
- Any other fraudulent representation
**********
A lack of protest or resistance does not mean a person is consenting, even if the lack of consent has not been communicated to the defendant; what is relevant is the complainant’s state of mind.
What is the definition of ‘Rape’ under Section 128(2)?
RAPE Section 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 reasonable grounds that person B consents to the connection.
What is the definition of ‘Unlawful Sexual Connection’ under Section 128(3)?
UNLAWFUL SEXUAL CONNECTION Section 128(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 person B consents to the connection.
What is the definition of Sexual Connection?
Sexual connection means—
(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)
What are the ingredients for Attempted Sexual violation - Section 129(1)?
What are the ingredients for Assault with intent to commit Sexual violation - Section 129(2)?
ATTEMPTED SEXUAL VIOLATION Section 129(1) - 10yrs
Every one who attempts to commit sexual violation
*********
ASSAULT WITH INTENT TO COMMIT SEXUAL VIOLATION
Section 129(2) - 10yrs
Every one who assaults another person with intent to commit sexual violation of the other person
Define the term ‘genitalia’
Genitalia are the external organs of reproduction in males and females. It also includes surgically constructed organs.
As the term literally means the organs of generation, it does not include pubic hair or breasts.
In negating consent, the Crown has to prove of 3 things. List the three things.
In proving that consent was not present in a case of sexual violation, the Crown must prove that:
− the victim did not consent, or
− the victim’s consent was not valid, or
− the defendant did not believe on reasonable grounds that the victim was consenting.
Define ‘Penis’
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)
What is the definition of ‘consent’?
Definition and Case Law
“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another”.
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 judgment”.
What makes sexual connection unlawful? (Consent)
What must the Crown Prove
(Subjective and Objective Test)
Establishing that sexual connection was unlawful involves a mixed subjective/objective test in relation to consent.
The Crown must prove that:
• 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).
Case Law
R v Koroheke - Genitalia
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.
Case Law
R v Gutuama
Objective test - reasosable grounds for belief in consent
(hint: Shoes)
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”.
Case Law
R v Harpur
Does or omits an act for the purpose of accomplishing his object
R v HARPUR
An attempt includes “an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime”.
Case Law
R v Forrest and Forrest
Proof of age
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.”
Case Law
R v Court (Indecency)
R v COURT
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant”
Case Law
R v Leeson
R v LEESON
The definition of ’indecent assault’ … is an assault accompanied with circumstances of indecency …”
Ingredients for Sexual Conduct with child under 12
Section 132
Section 132(1) 14yrs Has Sexual Connection With a child <12 ************************************* Section 132(2) 10yrs Attempts To have Sexual connection With a child
Definition -
- Child
- Young Person
CHILD
A child means a person <16yrs
Ingredients -
Sexual Conduct with a Young Person Under 16
Section 134
SEXUAL CONDUCT WITH YOUNG PERSON UNDER 16
Section 134
134(1) - 10yrs
Every one who has SEXUAL CONNECTION with a young person
134(2) - 10yrs
Every one who ATTEMPTS to have SEXUAL CONNECTION with a young person.
134(3) - 7yrs
Every one who DOES AN INDECENT ACT on a young person
Ingredients -
Indecent Assault - Section 135
What is the definition of Indecent Assault?
What must the Crown Prove?
Define Indecent Act
INDECENT ASSAULT
Section 135 - 7yrs
A person
Indecently assault
Another person.
*******
R v LEESON
“The definition of ’indecent assault’ … is an assault accompanied with circumstances of indecency …”
*******
In these cases the Crown must prove that:
• 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.
***********
‘Indecent act’ is generally accepted as an act accompanied by circumstances of indecency.
Ingredients -
Assault on a child or MAF - Section 194
Section 194 - 2yrs
194(a) Assaults any child under the age of 14 years;
194(b) Being a male, assaults any female.
Ingredients -
Ill-treatment OR neglect of child or vulnerable adult - Section 195
Section 195
195(1 - 10yrs
- Being a person described in subsection (2)
- Intentionally engages in conduct that, OR omits to discharge or perform any legal duty the omission of which, is likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult (the victim) if the conduct engaged in, or the omission to perform the legal duty, is a major departure from the standard of care to be expected of a reasonable person.
(2) The persons are—
(a) a person who has actual care or charge of the victim; or
(b) a person who is a staff member of any hospital, institution, or residence where the victim resides.
(3) For the purposes of this section and section 195A, a child is a person under the age of 18 years.
