Sexual Offences Flashcards
Define sexual connection, section 2 of the Crimes Act 1961
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
What was held in R v Cox?
Consent must be full, voluntary, free and informed, given by a person in a position to form a rational judgement
What are four circumstances that do not constitute consent to sexual activity, S128A
- 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
Defence to a charge of sexual conduct with young person under 16
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
Ingredients of incest
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
Three offences covered under section 134
1) Sexual connection with a young person
2) Attempted sexual connection with a young person
3) Indecent act on a young person
Definition of rape
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
What is the best way of proving age?
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.
What is the leading case law to prove age and what was found?
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.
Subjective and objective test in relation to sexual violation, 3 step process
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)
Objective test case law
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”
Definition of unlawful sexual connection
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)
Definition of genitalia
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.
Definition of penis
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.
Proving penetration, 3 things
1) the complainants evidence
2) medical exam, including physical injuries and DNA evidence
3) the defendants admissions
Wording and section for both sexual violation charges
Section 128(1), 20 years imprisonment
(a)A person
Rapes
Another person
(b)A person
Has unlawful sexual connection
With another person
What degree of penetration is sufficient?
The extent of the penetration is not relevant, any degree of penetration is sufficient
Force or threat of force case law
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
Sexual conduct with a child under 12 section and penalty etc
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
Difference between sexual violation charge and sexual conduct under 12
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
Case law relating to consent of a child
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.
What does indecent act on a child cover?
All forms of sexual activity with a child other than those that involve sexual connection.
Indecency case law
R v Court
Conduct that right thinking people will consider an affront to the sexual modesty of the complainant
Section, penalty and wording for sexual conduct with a young person under 16, and what does it cover
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
Defence to section 134, sexual conduct with under 16
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
