Sexual Offences - definitions Flashcards
Sexual connection
Crimes Act 1961, Section 2
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)
Introduction into / Penetration
Crimes Act 1961, Section 2
(1A) For the purposes of paragraph (a) of the definition in subsection (1) of sexual connection, introduction to the slightest degree is enough to effect a connection.
Proving penetration
Proof of penetration may be established by:
- the complainant’s evidence
- a medical examination, including physical injuries and DNA evidence
- the defendant’s admissions
Genitalia
Crimes Act 1961, Section 2
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)
Penis
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)
Consent
“Consent” is a person’s conscious and voluntary agreement to someting desired or proposed by another.
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).
Consent
subjective subjective objective tests
Step 1 - Absense of Consent
Whether or not the complainant was consenting is a subjectinve test from the complainant’s point of view - i.e. what was the complainant thinking at the time?
The Crown must prove that the complainant was not consenting to the sexual act at the time it occurred - it is not for the defendant to prove that she was consenting.
Step 2 - Belief in Consent
If she wasn’t consenting did the offender believe she was consenting - i.e. what was the offender thinking at the time?
Step 3 - Reasonable Grounds for Belief in Consent
The objective test is: what would a reasonable person have believed if placed in the same position as the defendant?
Matter not constituting consent
Crimes Act 1961, Section 128A
(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.
