Sexual Offences

Question 1

Define sexual connection, section 2 of the Crimes Act 1961

Answer 1

a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, or:
i) a part of the body of another person, or
ii) an object held or manipulated by another person

b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus
c) the continuation of connection of a kind described in a or b

Question 2

What was held in R v Cox?

Answer 2

Consent must be full, voluntary, free and informed, given by a person in a position to form a rational judgement

Question 3

What are four circumstances that do not constitute consent to sexual activity, S128A

Answer 3

• Does not consent just because he or she does not protest or offer physical resistance to the activity
• if he or she allows it because of force applied to him or her, the threat of the application of force.
• if the activity occurs while he or she is asleep or unconscious
• 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
• allows it because they are mistaken about who the other person is

Question 4

Defence to a charge of sexual conduct with young person under 16

Answer 4

S134A(1), before the time of the act, they took reasonable steps to establish the young person was of or over 16 years, and at the time of the act, they believed that the young person was 16 or over, and the young person consented

Question 5

Ingredients of incest

Answer 5

S130, CA 1961

a) it is between 2 people whose relationship is that of parent and child, siblings, half-siblings, or grandparents and grandchildren.
b) the person charged knows of the relationship

Question 6

Three offences covered under section 134

Answer 6

1) Sexual connection with a young person
2) Attempted sexual connection with a young person
3) Indecent act on a young person

Question 7

Definition of rape

Answer 7

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 that person B consents to the connection

Rape is a specific form of unlawful sexual connection that involves penetration of genitalia by the offenders penis

Question 8

What is the best way of proving age?

Answer 8

Producing the complainants birth certificate, in conjunction with other independent evidence that identifies the complainant as the person named in the certificate. Ideally this will be the evidence of the parent.

Question 9

What is the leading case law to prove age and what was found?

Answer 9

R v Forrest and Forrest: At trial a 14 year produced her birth certificate and gave evidence that she was the person named in the certificate. This was not sufficient in this situation. The best evidence available as to proof of age should be abduced.

Question 10

Subjective and objective test in relation to sexual violation, 3 step process

Answer 10

1 - the complainant did not consent to the sexual act (subjective) and,
2 - the offender did not believe the complainant was consenting (subjective) or,
3 - if he did believe she was consenting, the grounds for such a belief were not reasonable (objective)

Question 11

Objective test case law

Answer 11

R v Guatama - 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”

Question 12

Definition of unlawful sexual connection

Answer 12

A has unlawful sexual connection with B if A has sexual connection with B,

a) without B’s consent to the connection and
b) without believing on reasonable grounds that B consents to the connection

128(3)

Question 13

Definition of genitalia

Answer 13

the penis and testicals of a male, and the vagina and vulva of a female. also includes surgically constructed or reconstructed genitalia (to include transgender)

R v Koroheke - genitalia comprise reproduction organs, interior and exterior, they include the vulva and the labia, both interior and exterior, at the opening of the vagina.

Question 14

Definition of penis

Answer 14

male organ of reproduction, forms part of the male genitalia. legislation also includes trans genders.

Penis includes a surgically constructed or reconstructed organ analagous to a naturally occurring penis.

anyone with a penis is capable of committing rape, irrespective of their biological gender.

Question 15

Proving penetration, 3 things

Answer 15

1) the complainants evidence
2) medical exam, including physical injuries and DNA evidence
3) the defendants admissions

Question 16

Wording and section for both sexual violation charges

Answer 16

Section 128(1), 20 years imprisonment

(a)A person
Rapes
Another person

(b)A person
Has unlawful sexual connection
With another person

Question 17

What degree of penetration is sufficient?

Answer 17

The extent of the penetration is not relevant, any degree of penetration is sufficient

Question 18

Force or threat of force case law

Answer 18

R v Koroheke

Important to distinguish between consent that is freely given, and submission by a woman to what she may regard as unwanted but unavoidable. If she submits due to fear of what might happen, that is not consent

Question 19

Sexual conduct with a child under 12 section and penalty etc

Answer 19

Section 132
14 years
10 years for an attempt

(1) has sexual connection
With a child

(2) attempts
Sexual connection
With a child

(3) does an indecent act
On a child

Question 20

Difference between sexual violation charge and sexual conduct under 12

Answer 20

Consent is a defence for sexual violation, but the consent of a child is not a defence to a charge of sexual conduct under 12

Question 21

Case law relating to consent of a child

Answer 21

R v Cox

Although a child of 10 or 11 may be able to give F, V, F, I consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional. A 10 or 11 year old may know what sexual intercourse is. They may indicate their agreement.

Even where they indicate an agreement to the act occurring, no reasonable adult would have grounds for believing that a 10 or 11 year old girl has the experience or maturity to understand the nature and significance of the act.

Question 22

What does indecent act on a child cover?

Answer 22

All forms of sexual activity with a child other than those that involve sexual connection.

Question 23

Indecency case law

Answer 23

R v Court

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

Question 24

Section, penalty and wording for sexual conduct with a young person under 16, and what does it cover

Answer 24

134, 10 years imprisonment

Has sexual connection
With a young person

Some young people may be able to give consent to sexual activity, (which rules out sexual violation) but does not provide a defence to this charge

Question 25

Defence to section 134, sexual conduct with under 16

Answer 25

If defendant proves:

• they had taken reasonable steps to ascertain that the young person was at least 16,
• they believed on reasonable grounds that the young person was at least 16,
• the young person consented