Day 9: Sexual Offences all

Question 1

What must be proved in all cases of sexual violation?

Answer 1

• There was an intentional act by the offender involving sexual connection with the complainant

AND

• The complainant did not consent

AND

• The offender did not believe the complainant was consenting OR
• if he did believe she was consenting, the grounds for such a belief were not reasonable

Question 2

What must occur to be able to charge with rape?

Answer 2

Penetration must occur without the complainant consent, and without the defendant believing on reasonable grounds that the complainant was consenting

Question 3

What 3 ways can sexual connection occur?

Answer 3

• Penetration of the complainants genitalia or anus
• Connection between the defendants mouth or tongue and the defendants genitalia or anus
• Connection between the complainants mouth or tongue and the defendants genitalia or anus

Question 4

Definition of sexual violation:

Answer 4

The act of a person who

(1) rapes another person

(2) has unlawful sexual connection with another person

Question 5

Sexual connection means:

Section 2 interpretation

Answer 5

(a) connection effected by the introduction into the genitalia or anus of one person, (otherwise than for genuine medical purposes)
(i) a part of the body of another person
(ii) an object held or manipulated

(b) connection between the mouth or tongue of one person and a part of another persons genitalia or anus

(c) the continuation of connection of a kind described in paragraph (a) or (b)

Question 6

How to prove penetration?

Answer 6

• The complainants evidence
• Medical examination, including physical injuries and DNA
• The defendants admissions

Question 7

R v Koroheke

Answer 7

The genitalia comprise the reproductive organs, interior and exterior, they include the vulva and labia both internal and exterior, at the opening of the vagina.

Question 8

Penis:

Answer 8

The male reproductive organ. It forms part of the male genitalia, the legislation encompasses trans-gender individuals

Question 9

Section 127 Crimes Act (Presumption of age):

Answer 9

There is no presumption of law that a person is incapable of sexual connection because of their age

Question 10

What must the crown prove in terms of ‘consent’?

Answer 10

• The complainant did not
  consent (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 (objective test)

Question 11

Define consent:

Answer 11

A persons conscious and voluntary agreement to something desired or proposed by another.

Question 12

R v Cook

Answer 12

To be effective, consent must be “real, genuine or true consent, and that it may be conveyed by words, conduct or both”

Question 13

R v Cox

Answer 13

Consent must be “full, voluntary, free and informed…freely and voluntarily given by a person in a position to form a rational judgement”

Question 14

Explain reluctant consent:

Answer 14

(R v Herbert)

True consent may be given reluctantly and regretted afterwards but if consent is given even in such a manner, provided it is without fear of force or actual/threatened force, then the act of sexual connection would not be rape.

Question 15

Explain the subjective and objective tests in terms of consent:

Answer 15

Subjective: Absence of consent

Objective: Reasonable grounds for belief in consent

Question 16

R v Gutuama

Answer 16

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”.

Question 17

Recklessness as to consent:

Answer 17

Recklessness as to whether the complainant is consenting is not consistent with having a reasonable belief in consent.

Question 18

When is consent relevant as to timings?

Answer 18

The time when consent and belief in consent, is to be considered is at the same time the act actually took place.

Question 19

Crump v R

When there is evidence that consent has been withdrawn, what are the 6 elements that may need to be proven?

Answer 19

1. Sure of penetration
2. Sure that she did not consent.
3. Sure that he knew she wasn’t consenting (subjective)
4. Sure that he continued knowing that she was no longer consenting (subjective)
5. Sure he did not believe on reasonable grounds that she was consenting. (objective)
6. Sure that he continued penetration when a reasonable person would not believe that she was still consenting (objective)

Question 20

Section 128A: Allowing sexual activity does not amount to consent in which circumstances: (7)

Answer 20

• Lack of protest or
  resistance
• Force, threat or fear of
  force
• Asleep or unconscious
• Affected by alcohol or
  drugs
• Intellectual, mental or
  physical impairment
• Mistake as to identity
• Mistake as to nature and
  quality of act

Question 21

What elements need to be present to be guilty of attempted sexual violation?

Answer 21

• Intend to commit the
  offence
• Take a real and
  substantial step towards
  achieving that aim

Question 22

Can a child consent to sexual activity?

Answer 22

Unless in extremely rare circumstances it is not reasonable for an adult to believe a child was consenting to sexual activity.

Even in the unlikely event that the child’s consent is sufficient to provide a defence to sexual violation, the consent is no defence to sexual conduct with a child under 12.

Question 23

R v Court

Answer 23

Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of the complainant.

Question 24

R v Dunn

Answer 24

Indecency must be judged in the light of time, place and circumstances. More than trifling and sufficient to “warrant the sanction of the law”.

Question 25

Defences for Section 134:

What makes it harder to prove?

Answer 25

• They had taken
  reasonable steps to
  ascertain that the YP was
  at least 16
• They had RGTB the YP
  was at least 16
• The young person
  consented

*The wider the age and
maturity gap between the
defendant and YP, the
harder it will be to
establish a defence

Question 26

R v Leeson

Answer 26

The definition of indecent assault..is an assault accompanied with circumstances of indecency

Question 27

What must prosecution prove for ‘indecent assault’?

Answer 27

• The defendant
  intentionally assaulted
• The circumstances
  accompanying the assault
  were indecent
• The defendant intended
  the conduct that a
  reasonable person would
  find indecent

Question 28

Timing of complaints for ASA:

Answer 28

• Acute (Reported within
  seven days)
• Non-acute (7 days - 6
  months)
• Historic (over 6 months)

Note: this does not determine the level of risk or urgency in
individual circumstances.

Question 29

Meaning of ‘immediate family’ for VRA?

Answer 29

Means a member of the victim’s family or other culturally recognised family group,
who is in a close relationship with the victim at the time of the offence.

• spouse, civil union partner, or de facto partner; or
• child or step-child
• brother or sister or step-brother or step-sister
• parent or step-parent
• grandparent

Question 30

Section 51 VRA: Return of property held as evidence:

Answer 30

1) return it to the person
as soon as practicable after they no longer need to hold it for those purposes.

2) does not apply if the person advises that
agency that they do not want the property returned

Question 31

What is the primary and secondary objective in the medical forensic exam?

Answer 31

Primary:

Physical, sexual, mental health and safety of the victim (well being and safety)

Secondary:

To collect trace evidence