Sexual Violation Flashcards
What needs to be proved?
Crown must prove beyond reasonable doubt:
- Intentional act by the offender involving sexual connection with the complainant, and
- complainant did not consent to the sexual act, and
- offender did not believe the complainant was consenting, or
- offender did believe the complainant was consenting, the grounds for such a belief were not reasonable.
Therefore any investigation must prove:
- offender knew they did not have victim’s consent but acted anyway (offender’s mens rea)
- the offender’s grounds for believing in the consent were unreasonable.
No Legal Spouse Defence
Spouse who sexually violates their spouse has no legal defence due to the couple are legally married.
Sec. 128(4), Crimes Act 1961
No presumption because of age
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
Sec. 127, Crimes Act 1961
What makes sexual connection unlawful?
Consent:
- Subjective Test
- Subjective Test
- Objective Test
Reluctant Consent
Court held true consent can be given reluctantly or hesitantly and may be regretted afterwards. Unless it is provided without fear of, application of, threatening of force.
R v Clarke
Rape of 16 year old female:
- Offender affected by alcohol
- Argued what may appear to be unreasonable to sober person may not be to drunk person
- Court rejected argument. Term reasonable should not be interpreted as reasonable as offender believed to be.
Recklessness as to Consent
Recklessness is not consistent with reasonable belief in consent.
Consent: Lack of Protest or Resistance
Does not mean person is consenting. What is relevant is the complainant’s state of mind.
However it is relevant as to whether the defendant belief in consent, and whether the belief was reasonable.
Consent: Asleep on Unconscious
Even prior agreement does not constitute consent.
Consent: Affected by Alcohol or Drugs
Consent is not invalid simply because the person is intoxicated. The question is whether the person is so affected (level) they cannot understand the situation and give rational & reasoned consent.
Consent: Intellectual, Mental, Physical Impairment
The issue is whether the impairment is severe enough to affect the complainant’s capacity to give consent.
Alternative charge: Sec. 138, Crimes Act 1961
Consent: Mistaken Identity
Note: the mistake is one made by the complainant submitting to sexual activity and not the defendant.
Consent: Mistaken as to Nature and Quality of Act
Consent: If they agree/aware the act is intercourse, they are not mistaken.
Consent: If they agree to an act other than intercourse and intercourse takes place, they have not given their genuine consent.
Sec. 129(1), Crimes Act 1961
Attempted Sexual Violation
R v Harpur
The courts may view the defendant’s conduct cumulatively, up to when the conduct in question stops, and consider the the conduct as the entirety. Whether it is sufficiently proximate is always relevant, but not definitive.