Sexual Offenses Flashcards
Sexual violation by Rape
Section 128(1)(a)
- A person
- Rapes
- Another person
Sexual Violation by Unlawful sexual connection
Section 128(1)(b)
- A person
- Has unlawful sexual connection
- Another person
Sexual conduct with a child under 12
Section 132(3)
- A person
- Does an indecent act on a child
Sexual conduct with a young person under 16
1
Section 134(1)
- A person
- Has sexual connection with a young person
Sexual conduct with a young person under 16
3
Section 134(3)
- A person
- Does an indecent act on a young person
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).
R v Koroheke
The genitalia comprise the reproductive organs, interior and exterior they include the vulva and the labia, both interior and exterior; at the opening of the vagina.
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).
Who do the ASA Policy and Procedures Apply to?
Adult- a person aged 18 years or older at the time of reporting a sexual assault.
The age at the time they are making the complaint not when it happened.
Before conducting medical forensic examination
- Contact on call practitioner to arrange a time for examination. Advise of known information
- Give very brief outline of the information known so far, including brief circumstances including when the sexual assault is believed to have occurred
- Whether drug/alcohol may be involved
- Details of the victims gender, age, injures or other known health concerns
Complaint types:
Acute: within 7 days of the offence
Non Acute: seven days to 6 months of the offence
Historic: longer than 6 months
Child Protection Policy
Victim is under the age of 18 years at the time of reporting.
Criteria for CPP
Sexual abuse
Physical abuse
Neglect
Sexual abuse of a child includes
Indecency
Sexual violation
Making sexual images
Physical abuse threshold
The action (of the abuse) The injury inflicted (outcome or result) The circumstances (factors in the case)
Any actions that meet the threshold even if they only happen once…
Blow or kick to the head Shaking of an infant Strangulation Use of a weapon Attempted drowning
Any injuries that meet the threshold even if they only happen once…
- A bone fracture
- Burn
- Concussion or loss of consciousness
- Any injury that requires medical attention
- Any bruising or abrasion when the child is very young and/or it is unlikely to be caused by play or another child or accident
Other considerations in conjunction with other actions and injuries
- the vulnerability of the child. Age,disability
- more than one offender
- history of abuse
- high degree of violence
- the offenders history
- location of the incident
- nature and level of concern from the notifier
Neglect is when…
A person intentionally ill-treats or neglects a child or causes or permits the child to be ill-treated in a manner likely to cause actual bodily harm, injury to health or mental disorder or disability.
Serious neglect examples
- not providing adequate food, shelter or clothing
- not protecting a child from physical harm or danger
- not accessing appropriate medical treatment or care
- allowing a child to be exposed to the illicit drug manufacturing process
- allowing a child to be exposed to an environment where volatile, toxic or flammable chemicals have been used or stored.
Initial steps
- Referral - information sharing between OT and Police
- Consultation - discussion at appropriate levels
- Agreement - agreeing upon an initial action in an Initial Joint Investigation Plan (IJIP)
IJIP considerations…
Initial Joint Investigation Plan
- immediate safety of child and any other children
- if a joint visit is required
- the management of the initial interview of the child.
- referral to medical practitioner and authority to do so.
- collection of physical evidence (e.g photos)
Questioning a Child
- If the child has made a clear disclosure to an adult and that adult can give you the information DO NOT question the child.
- If it is unclear what the child has said and there are no urgent safety issues DO NOT question further.
- DO NOT continue to question a child if it becomes clear while speaking to them that an offence has occurred
- If absolutely necessary to ascertain safety, ask open ended questions.
How to make an OT referral
- CPP form that’s emailed to OT
- phone 0508 FAMILY then a CPP form
- through a Family Harm report.
CPP categories
- Critical-24h- no safety or care identified. Serious harm concerns, requires immediate involvement.
- Very urgent-48h- at risk of serious harm but has some protective factors present for the next 48h.
- Urgent-7days - at risk of harm or neglect. Options for safety and support have been explored but remain unmet.
Sexual violation by Rape requires …
Penetration by the penis into the complainant’s genitalia. It must be intentional and includes continuation of the act.
No consent given for penetration and without the defendant believing on reasonable grounds that the complaint was consenting.
Sexual violation by unlawful sexual connection can occur in…
Three different ways.
- penetration of the complainant’s genitalia or anus
- connection between the defendant’s mouth or tongue and the complainant’s genitalia or anus
- connection between the complainant’s mouth or tongue and the defendant’s genitalia or anus.
Anus does not have a defintion but
Is not included in the defintion of genitalia and therefore non-consensual penile penetration of the anus is not rape it is “sexual violation by unlawful sexual connection”.
Continuation
This is capturing situations where sexual activity is commenced consensually, but consent is later withdrawn.
Consent defintion
A person’s conscience and voluntary agreement to something desired or proposed by another.
R v Cox
Consent Case Law:
Consent must be full, voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgment
Consent
Subjective test
What was the complaint thinking at the time?
Consent
Objective Test
What would a reasonable person have believed 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 shoes could have thought that the complainant was consenting.
Section 128A(1) Crimes Act 1961
Allowing sexual activity does not amount to consent if…
A person doesn’t protest or offer physical resistance
Section 128A(2) Crimes Act 2961
Allowing sexual activity does not amount to consent if…
- He or she allows the activity because of force applied or
- The threat of force
- the fear of the application of force
Section 128A(3)
Allowing sexual activity does not amount to consent if…
They are asleep or unconscious
Section 128A(4) Crimes Act 1961
Allowing sexual activity does not amount to consent if…
They are so affected by alcohol or drugs that he/she can not consent or refuse to consent
Section 128A(5) Crimes Act 1961
Allowing sexual activity does not amount to consent if…
He she is affected by an intellectual, mental or physical condition or impairment of such a degree that he or she cannot consent or refuse to consent
Section 128A(6) Crimes Act 1961
Allowing sexual activity does not amount to consent if…
He or she is is mistaken about who the other person is.
Section 128A(7) Crimes Act 1961
Allowing sexual activity does not amount to consent if…
He or she is mistaken about its nature and quality
Section 128(2) Rape defintion
Person A rapes person B if person A has sexual connection with person B’s genitalia by person A’s penis-
(a) without person B’s consent
(b) without believing on reasonable grounds that person B consents.
S134A
Defence to charge summarised
- they had taken reasonable steps to ascertain that the young person was at least 16 and
- they believed on reasonable grounds that the young person was at least 16 and
- the young person consented
