Sexual Offences Flashcards
Sexual violation by rape
- a person
- rapes
- another person
Sexual violation by unlawful sexual connection
Section 128(1)(b)
- a person
- has unlawful sexual connection
- with another person
Assault with intent to commit sexual violation
Section 128(1)(c)
- a person
- assaults
- another person
- with intent to commit sexual violation of the other person
Sexual conduct with a child under 12
Section 132
- a person
(1) has sexual connection with a child
(2) attempts to have sexual connection with a child
(3) does an indecent act on a child
Sexual conduct with a young person under 16
Section 134
- a person
(1) has sexual connection with a young person
(2) attempts to have sexual connection with a young person
(3) does an indecent act on a young person
Indecent assault
Section 135
- a person
- indecently assaults
- another person
Defitinition of penetration
Introduction to the slightest degree no matter how slight or fleeting
Definition of rape
- requires penetration by the penis of the complainants genitalia
- must be intentional
- without the complainants consent
- without the defendant believing on reasonable grounds that the complainant was consenting.
R v koroheke / definition of genitalia
The genitalia comprise the reproduction organs, interior or exterior…they include the vulva [and] the labia, both interior and exterior, at the opening of the vagina
Definition of 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.
Matters not constituting consent
- mistaken identity
- force, threats of force or fear of application of force (to any person)
- a lack of protest or resistance
- asleep or unconscious (even prior agreement prior doesn’t constitute consent)
- alcohol or drugs (question is whether or not they were affected to such an extent that they were incapable of understanding the situation and giving rational or reasoned consent)
- mistake as to nature and quality of act (victim thought it was medical in nature and didn’t consent to actually having sex)
- intellectual, mental or physical disability or impairment
Establishing that sexual connection was unlawful
Subjective and objective test.
Subjective - Complainants point of view, defendants point of view
Objective - what would a reasonable person think in the circumstances
Crown must prove
- the complainant didn’t consent to sexual act
- the offender did not believe the complainant was consenting
- if he did believe she was consenting, the grounds for such belief were not reasonable
R v gutuama
Under the objective test the crown must prove that “no reasonable person in the accused shoes could have thought the complainant was consenting”
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”
R v Harpur
The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops.. the defendants conduct [may] be considered in its entirety. Considering how much remains to be done… is always relevant, though not determinative
Note : in relation to a text sting by police. Harpur wanted to have sex with four year old and went to meet up and got arrested. Proximate for the attempt counts all circumstances leading up to attempt and is case by case.
