SEXUAL OFFENCES - Definitions Flashcards
Sexual violation defined
s128, CA 1961 - Sexual violation defined
-
Sexual violation is the act of a person who—
- rapes another person; or
- has unlawful sexual connection with another person.
- 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,—
- without person B’s consent to the connection; and
- without believing on reasonable grounds that person B consents to the connection.
- Person A has unlawful sexual connection with person B if person A has sexual connection with person B —
- without person B’s consent to the connection; and
- without believing on reasonable grounds that person B consents to the connection.
- One person may be convicted of the sexual violation of another person at a time when they were married to each other.
RAPE DEFINED
s128(2) – RAPE DEFINED
- 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,—
- without person B’s consent to the connection; and
- without believing on reasonable grounds that person B consents to the connection.
Genitalia
s2, CA61 - 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
Penis
The male organ of reproduction
Penis - s2, CA61
Includes a surgically constructed or reconstructed organ analogous to naturally occurng penis. (whether the person concerned is male, female or of indeterminate sex).
Consent
Consent
Consent is a person’s conscious and voluntary agreement to do something desired or proposed by another.
R v COX
Consent must be ‘full, voluntary, free and informed…freely and voluntarily given by a person in a position to form a rational judgement’.
Non consent under certain circumstances
s128A, CA 61 - Non consent under certain circumstances
A person does not consent to sexual activity under certain circumstances. Matters that do not constitute consent:
- not protesting or offering physical resistance use of force, threats of force, or fear of force
- asleep or unconscious
- so affected by alcohol / drugs they cannot consent
- so affected by mental or physical impairment they cannot consent
- mistaken ID
- mistaken as to nature and quality of the act
Reasonable Grounds
Reasonable Grounds (a 3 step process):
- Subjective test – Absence of consent - What was the complainant thinking at the time? Was she consenting?
- Subjective test – Belief in consent -If she wasn’t consenting, did the offender believe she was consenting? What was the offender thinking at the time.
- Objective test – Reasonable grounds for belief in consent - If the offender believed complainant was consenting, was that belief reasonable in the circumstances. Ie what would a reasonable person have believed if placed in the same position as the defendant?
R v GUTUAMA
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.”
PROOF OF AGE
PROOF OF AGE
In practice this generally involves producing the victim’s birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
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.
Unlawful Sexual Connection
s128(3) CA61 – Unlawful Sexual Connection
3) Person A has unlawful sexual connection with person B if person A has sexual connection with person B —
(a) without person B’s consent to the connection; and
(b) without believing on reasonable grounds that person B consents to the connection.
Slightest degree of penetration is sufficient
s2(1A), CA 61 - Slightest degree of penetration is sufficient
(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.
So, while under paragraph (a) penetration of the genitalia or anus must be proved, the extent of penetration is not relevant; any degree of penetration, no matter how slight or fleeting, is sufficient.
s134(6), CA 61 - Sexual conduct with a young person under 16
s134(6), CA 61 - Sexual conduct with a young person under 16
6) In this section,—
young person means a person under the age of 16 years
s132(6), CA 61 - Sexual conduct with child under 12
s132(6), CA 61 - Sexual conduct with child under 12
(6) In this section,—
child means a person under the age of 12 years
indecent act
indecent act
An ‘indecent act’ is generally accepted to be an act accompanied by circumstances of indecency.
Indecent acts are usually consensual acts. In age-specific sexual offences, doing an indecent act with a child or young person can also include indecently assaulting that child or young person.
Indecent assault
s135, CA61 - Indecent assault
Every one is liable to imprisonment for a term not exceeding 7 years who:
- indecently
- assaults
- another person.
R v Leeson
“The definition of ’indecent assault’ … is an assault accompanied with circumstances of indecency …”
What is the act and definition of sexual connection?
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)
