Sexual Offences Case Law / Definitions Flashcards
Definition of a person
Gender neutral, proven by JN / CE.
Definition of sexual violation
A person rapes or has unlawful sexual connection with another person.
Definition of Rape
Penetration of a persons genitalia by another’s penis (Or surgically constructed penis) without consent or without believing on reasonable grounds that there was consent.
Definition of Penetration
Section 2, Crimes Act 1961
Entry affected by the slightest degree
What is proof of penetration?
- Victim statement
- Admissions
- Medical examination / DNA
Definition / Case law for 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.
Definition of Penis
The penis is the male organ of reproduction, it forms part of the male genitalia. (Includes transgender males - contructed penis’s)
Crimes Act 1961, Section 2:
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)
Definition of consent
Conscious and voluntary agreement to something desired or proposed.
Case law for consent
R V COX
Consent must be full, free and voluntary, and made by a person capable of making rational judgement.
R V KOROHEKE
Freely given, rather than submission to something unwanted or unavoidable.
R V GUTUAMA
No reasonable person would believe that there was consent.
Crown must prove:
Person did not consent, the accused did not believe that the complainant consented and if the accused did believe that the complainant consented, then the belief was not on reasonable grounds
Definition of unlawful sexual connection
Introduction into genetalia or anus by the body part of another, or object held or manipulated. Includes mouth/tongue connection with genetalia. Excludes legitimate medical exams. Without consent or without belief on reasonable grounds that there is consent.
Definition of Child
A person under 12
Proven by JN / CE
Case law for age
R V FORREST AND FORREST
The best possible evidence in the circumstances is adduced by prosecution in terms of proof of age.
Definition of Indecent Act
Act accompanied by circumstances of indecency.
Case Law for Indecency
R V COURT
Indecency means “Conduct that right thinking people will consider an affront to the sexual modesty of that complainant”.
R V DUNN
Indecency must be judged in light of the time place and circumstances
Case Law for indecent assault
R V LEESON
The definition of indecent assault, is assault accompanied with circumstances of indecency.
Crimes Act 1961 Section 128A
Consent is invalid if:
- Mistaken identity
- Impairment (Drugs/Alcohol)
- Nature and quality of the act are mistaken
- Impairment (Intellectual, physical or mental)
- Force (Feared, applied, threaten)
- Asleep, Unconscious
- Protect or Resistance lacking
Crimes Act Section 134A
It is a defence if the complainant consented, the defendant took all reasonable steps to ascertain that the young person was over 16 and the defendant believed on reasonable grounds that the young person was over 16
Crimes Act Section 134 (4)
It is a defence if the young person and accused are married
