Sexual Offences - Case Law, Definitions, Liabilities Flashcards
R v Koroheke - Genitalia
The genitalia comprises of the reproductive organs, interior and exterior. They include the vulva and the labia, both interior and exterior, at the opening of the vagina.
R v Cox - Consent
Consent must be full, and informed. Freely and voluntarily given by a person in a position to form rational judgement.
R v Gutuama - Consent (Objective Test)
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.
R v Koroheke - Submission
It is important to distinguish between Consent that is freely given and submission by a women to what she may regard as unwanted but unavoidable.
R v Cox - Child Consent
It is possible that a child of 10/11yrs may be able to give a full, free, voluntary and informed consent, the circumstances that would justify that conclusion would be exceptional if not rare. Even where she indicates agreement to the act occurring, no reasonable adult would have grounds for believing that they have the experience or maturity to understand the nature and significance of the act.
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.
R v Court
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of the complainant”.
R v Leeson
The definition of indecent assault is an assault accompanied with circumstances of indecency.
Indecent Assault - What must the prosecution prove?
- The defendant intentionally assaulted the complainant 2. The circumstances accompanying the assault were indecent 3. The defendant intended the conduct that a reasonable person would find indecent.
Incest (Section, subsection, Act, Penalty and Elements)
Crimes Act 1961, Section 130 (16yrs or over - 10 years imprisonment) 1) Sexual connection is incest if a) it is between two people whose relationship is that of Parent and Child, Siblings, Half-siblings, or Grandparent and Grandchild, AND b) the person charged knows of the relationship.
Defence to Section 134 - Sexual Conduct with a Young Person
If the defendant can prove that at the time of the sexual activity: 1) They had take reasonable steps to ascertain that the young person was at least 16 AND 2) The believed on reasonable grounds that the young person was at least 16, AND 3) the young person consented.
Age ranges for Sexual Offences?
Child = Under 12yrs old (age and consent CANNOT be a defence) Young Person = 12 - 15yrs old (this can also include under 12’s if age at the time of offending in uncertain) Adult = Over 15yrs old
Circumstances where allowing sexual activity DOES NOT amount to consent? (s128A)
1) Not protesting or offering physical resistance. 2) Allows the activity because of force applied to them or someone else, the threat of such force or fear of that force. 3) Is sleeping or unconscious. 4) So affected by alcohol or drugs that they cannot consent or refuse. 5) Is affected by intellectual, mental or physical condition or impairment of such a nature that they cannot consent or refuse. 6) Mistaken Identity. 7) Mistaken about the nature or quality of the act.
Two Subjective Tests for Consent (Objective Test is in R v Gutuama)
1) What was the complainant thinking at the time? The Crown must prove that the complainant was NOT consenting. 2) What was the defendant thinking at the time? If he believed she was consenting at the time, then the Objective Test must be applied. What would a reasonable person have believed if placed in the same position?
Define Rape as defined in s128(2)
s128(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 in reasonable grounds the Person B consents to the connection.
