Sexual Offences Flashcards
Rape is a specific form of…
sexual violation that involves the non-consensual penetration of the complainant’s genitalia by the offender’s penis.
Unlawful Sexual Connection has a wider meaning…
and includes any form of non-consensual penetration or oral connection with a person’s genitalia or anus.
Sexual Offences - Sexual Violation
What must be proved?
In all cases of sexual violation the prosecution must prove beyond reasonable doubt 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.
Define Genitalia - Including Act and Section
Section 2
Crimes Act 1961
The genitalia or genitals (literally: organs of generation) include the penis and testicles of a male, and the vagina and vulva of a female.
The wider statutory definition also includes surgically constructed or reconstructed genitalia to allow for offences involving trans-gender individuals.
“Genitalia 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)”
Define Penis Including Act and Section
Section 2
Crimes Act 1961
The penis is the male organ of reproduction. It forms part of the male genitalia, however again the legislation encompasses trans-gender individuals.
“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)”
Mouth or Tongue Commentary
In the case of oral sexual connection it is not necessary for there to be penetration; any touching of a person’s genitalia or anus with another person’s mouth or tongue is sufficient.
Define Continuation
The definition of sexual connection includes the “continuation” of such acts, capturing situations where sexual activity is commenced consensually, but consent is later withdrawn.
There is an obligation on a person to stop sexual activity at the point he realises the other person is, or may be, no longer willing – failure to do so may render a previously consensual act unlawful.
No Presumption of Age - Including Section and Act
Crimes Act 1961
Section 127
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
This provision means that any person of any age is capable, in a legal sense, of being involved in sexual connection.
Therefore it would not be a defence to a sex-related charge to say that either of the parties was too young or too old to have sexual connection.
What makes Sexual Connection Unlawful? What must the crown prove?
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).
Commentary on the Objective Test - Reasonable Grounds RE Consent
In R v Clarke the defendant was one of three men who raped a 16-year-old girl at a party. He claimed he had misinterpreted the girl’s lack of resistance as a sign of consent because the consumption of alcohol had affected his judgment. He argued that what may appear unreasonable to a sober person may well appear reasonable to a person under the influence of alcohol.
The Court of Appeal rejected that argument, ruling out a defendant’s personal characteristics as relevant factors in a purely objective test. The term “reasonable” should not be interpreted as “reasonable in the circumstances as the accused believed them to be” or in some other way bringing in a subjective approach to justify the accused’s belief.
Legislation - Regarding Allowing Sexual Activity Does Not Amount to Consent in some circumstances
Section 128A, Crimes Act 1961
Allowing sexual activity does not amount to consent in some circumstances
(1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.
(2) A person does not consent to sexual activity if he or she allows the activity because of—
(a) force applied to him or her or some other person; or
(b) the threat (express or implied) of the application of force to him or her or some other person; or
(c) the fear of the application of force to him or her or some other person.
(3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.
(4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
(5) A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
(6) One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.
(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.
(8) This section does not limit the circumstances in which a person does not consent to sexual activity.
(9) For the purposes of this section,—
allows includes acquiesces in, submits to, participates in, and undertakes sexual activity, in relation to a person, means—
(a) sexual connection with the person; or
(b) the doing on the person of an indecent act that, without the person’s consent, would be an indecent assault of the person.
Define Rape Including Section and Act
Section 128(2) Crimes Act 1961
(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.
Define Sexual Connection including Act and Section
Section 2
Crimes Act 1961
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).
Indecent Assault - What must be proved?
In these cases the prosecution 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.
Define Consent
“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.
The Court in R v Cook held that to be effective, consent must be “real, genuine or true consent, and that it may be conveyed by words or conduct or both”.
