Sexual Offences (SOA 2003) Flashcards
What is the AR and MR of Rape? (s1 SOA 2003)
AR:
(a) The penile penetration by the defendant of the vagina, anus or mouth of another person;
(b) who at the time does not consent to the penetration.
MR:
(a) The intentional penetration of the victim by the defendant;
(b) Absence of a reasonable belief in consent.
What is the AR and MR of Assault by Penetration? (s2 SOA 2003)
AR:
(a) Penetration by the defendant of the vagina or anus of another person with part of the defendant’s body or anything else;
(b) The penetration is sexual; and
(c) The victim does not consent to the penetration.
MR:
(a) An intention to penetrate B’s vagina or anus by the defendant; and
(b) Absence of a reasonable belief in consent.
What is the AR and MR of Sexual Assault? (s3 SOA 2003)
AR:
(a) Touching of another individual;
(b) The touching is sexual;
(c) The other individual does not consent to the touching.
MR:
(a) The touching is intentional;
(b) Absence of a reasonable belief in consent.
Penetration is a continuing act and thus any withdrawal of consent by the victim during penetration suffices to commit the actus reus.
s79(2) and Kaitamaki
What is the definition of consent in s74?
A person consents if he or she agrees by choice and has the freedom and capacity to make that choice.
Courts have distinguished between mere submission and consent.
Kirk
Touching of an individual’s clothing is sufficient to amount to ‘touching’ for the purposes of a s3 offence.
R v H
What two elements make up the s78 definition of ‘sexual’?
(a) Whatever the circumstances or any person’s purpose in relation to it, it is because of its nature sexual (i.e. it is clearly sexual);
(b) Because of its nature it may be sexual and because of the circumstances or the purposes of any person in relation to it (or both), it is sexual.
R v H stated that which two questions should be asked of the jury if it is not clear whether touching was by its nature ‘sexual’?
(a) Would the jury, as 12 reasonable people, consider that the touching could be sexual?
(b) Whether the jury, as 12 reasonable people and in all the circumstances of the case, would consider that the purpose of the touching had in fact been sexual?
Which case held that s76(2)(a) could be construed narrowly, and although the victim had been deceived in some sense, this did not relate to the nature or purpose of the act itself?
Jheeta
Which case held that s76 was not triggered because there was no deception as to the nature or purpose of the act, though lack of consent could be found under s74 because the victim had not consented to unprotected sex?
Assange
Which case held that the defendant had deceived the complainant as to the purpose if not nature of the act, breaching s76?
Devonald
Absence of moral fault by the defendant is not in itself sufficient to negate the necessary mental element of the offence.
Kingston
Which case sets out the difference between crimes of basic and crimes of specific intent?
Majewski
Voluntary intoxication will not provide a defence in cases of ‘dutch courage’.
Gallagher
