Sexual Offences Flashcards

Question 1

Q

Explain Section 127 in relation ‘No presumption because of age’

Answer

A

Section 127

There is no presumption of law that a person is incapable of sexual connection because of his or her age.

Question 2

Q

Ingredients for Section 128

Answer

A

Sexual Violation by Rape
Section 128(1)a - 20yrs

A person
Rapes 
Another person
***********************************
Sexual Violation by UL SC
Section 128(1)b - 20yrs

A person
Has UL SC
Another person

Question 3

Q

Explain Section 128A - Allowing sexual activity does not amount to consent in some circumstances

MA FAMILA

M.A.F.A.M.I.L.A

Answer

A

Section 128A outlines situations where any apparent consent will not be valid, including, for example:

Where a person SUBMITS to sexual activity AS A RESULT OF FEAR or FORCE, or
Is unaware of the conduct because he or she is ASLEEP or UNCONSCIOUS.
**********
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
Any other fraudulent representation
**********
A lack of protest or resistance does not mean a person is consenting, even if the lack of consent has not been communicated to the defendant; what is relevant is the complainant’s state of mind.

Question 4

Q

What is the definition of ‘Rape’ under Section 128(2)?

Answer

A

RAPE
Section 128(2)

Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis,—

(a) without person B’s consent to the connection; AND
(b) without believing on reasonable grounds that person B consents to the connection.

Question 5

Q

What is the definition of ‘Unlawful Sexual Connection’ under Section 128(3)?

Answer

A

UNLAWFUL SEXUAL CONNECTION
Section 128(3)

Person A has unlawful sexual connection with person B if person A has sexual connection with person B—

(a) without person B’s consent to the connection; AND
(b) without believing on reasonable grounds that person B consents to the connection.

Question 6

Q

What is the definition of Sexual Connection?

Answer

A

Sexual connection means—

(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of—
(i) a part of the body of another person; or
(ii) an object held or manipulated by another person; or
(b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)

Question 7

Q

What are the ingredients for Attempted Sexual violation - Section 129(1)?

What are the ingredients for Assault with intent to commit Sexual violation - Section 129(2)?

Answer

A

ATTEMPTED SEXUAL VIOLATION
Section 129(1) - 10yrs

Every one who attempts to commit sexual violation
*********
ASSAULT WITH INTENT TO COMMIT SEXUAL VIOLATION
Section 129(2) - 10yrs

Every one who assaults another person with intent to commit sexual violation of the other person

Question 8

Q

Define the term ‘genitalia’

Answer

A

Genitalia are the external organs of reproduction in males and females. It also includes surgically constructed organs.

As the term literally means the organs of generation, it does not include pubic hair or breasts.

Question 9

Q

In negating consent, the Crown has to prove of 3 things. List the three things.

Answer

A

In proving that consent was not present in a case of sexual violation, the Crown must prove that:
− the victim did not consent, or
− the victim’s consent was not valid, or
− the defendant did not believe on reasonable grounds that the victim was consenting.

Question 10

Q

Define ‘Penis’

Answer

A

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)

Question 11

Q

What is the definition of ‘consent’?

Definition and Case Law

Answer

A

“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another”.

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 judgment”.

Question 12

Q

What makes sexual connection unlawful? (Consent)
What must the Crown Prove
(Subjective and Objective Test)

Answer

A

Establishing that sexual connection was unlawful involves a mixed subjective/objective test in relation to consent.
The Crown must prove that:
• the complainant did not consent to the sexual act (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 (an objective test).

Question 13

Q

Case Law

R v Koroheke - Genitalia

Answer

A

R v KOROHEKE
The genitalia comprise the reproduction organs, interior and exterior … they include the vulva [and] the labia, both interior and exterior, at the opening of the vagina.

Question 14

Q

Case Law

R v Gutuama
Objective test - reasosable grounds for belief in consent
(hint: Shoes)

Answer

A

R v GUTUAMA

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 15

Q

Case Law

R v Harpur
Does or omits an act for the purpose of accomplishing his object

Answer

A

R v HARPUR

An attempt includes “an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime”.

Question 16

Q

Case Law

R v Forrest and Forrest
Proof of age

Answer

A

R v FORREST and FORREST

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”

Question 17

Q

Case Law

R v Court (Indecency)

Answer

A

R v COURT

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

Question 18

Q

Case Law

R v Leeson

Answer

A

R v LEESON

The definition of ’indecent assault’ … is an assault accompanied with circumstances of indecency …”

Question 19

Q

Ingredients for Sexual Conduct with child under 12

Section 132

Answer

A

Section 132(1)
14yrs
Has Sexual Connection 
With a child <12
*************************************
Section 132(2)
10yrs
Attempts
To have Sexual connection
With a child

Question 20

Q

Definition -

Child
Young Person

Answer

A

CHILD

A child means a person <16yrs

Question 21

Q

Ingredients -

Sexual Conduct with a Young Person Under 16
Section 134

Answer

A

SEXUAL CONDUCT WITH YOUNG PERSON UNDER 16
Section 134

134(1) - 10yrs
Every one who has SEXUAL CONNECTION with a young person

134(2) - 10yrs
Every one who ATTEMPTS to have SEXUAL CONNECTION with a young person.

134(3) - 7yrs
Every one who DOES AN INDECENT ACT on a young person

Question 22

Q

Ingredients -

Indecent Assault - Section 135

What is the definition of Indecent Assault?

What must the Crown Prove?

Define Indecent Act

Answer

A

INDECENT ASSAULT
Section 135 - 7yrs

A person
Indecently assault
Another person.
*******
R v LEESON
“The definition of ’indecent assault’ … is an assault accompanied with circumstances of indecency …”
*******
In these cases the Crown must prove that:
• the defendant intentionally assaulted the complainant
• the circumstances accompanying the assault were indecent
• the defendant intended the conduct that a reasonable person would find indecent.
***********
‘Indecent act’ is generally accepted as an act accompanied by circumstances of indecency.

Question 23

Q

Ingredients -

Assault on a child or MAF - Section 194

Answer

A

Section 194 - 2yrs

194(a) Assaults any child under the age of 14 years;

194(b) Being a male, assaults any female.

Question 24

Q

Ingredients -

Ill-treatment OR neglect of child or vulnerable adult - Section 195

Answer

A

Section 195
195(1 - 10yrs

Being a person described in subsection (2)
Intentionally engages in conduct that, OR omits to discharge or perform any legal duty the omission of which, is likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult (the victim) if the conduct engaged in, or the omission to perform the legal duty, is a major departure from the standard of care to be expected of a reasonable person.
(2) The persons are—
(a) a person who has actual care or charge of the victim; or
(b) a person who is a staff member of any hospital, institution, or residence where the victim resides.
(3) For the purposes of this section and section 195A, a child is a person under the age of 18 years.

Question 25

Q

Ingredients -

Section 195A

Answer

A

Section 195A imposes criminal liability in some situations where it is known a child (or vulnerable adult) is at risk of harm but where no action is taken.
The offence applies to:
• members of the same household as the victim
• people who are staff members of any hospital, institution or residence where the victim resides.
Criminal liability will arise if such a person has frequent contact with a child (or vulnerable adult) and:
• knows (mens rea) the victim is at risk of death, grievous bodily harm or sexual assault as a result of the acts or omissions of another person; and
• fails (actus reus) to take reasonable steps to protect the victim from that risk.

Question 26

Q

Discuss the statutory defence for s134A – sexual conduct with a young person under 16 years.

Answer

A

There is a statutory defence for sexual conduct with a young person (s134A). This statutory defence applies only when:
− the person charged can show they took reasonable steps to establish the young person was aged 16 or over, and
− the person charged believed on reasonable grounds that the young person was aged 16 or over, and
− the young person consented to that sexual connection.

Question 27

Q

Definition -

Introduction

Answer

A

INTRODUCTION
The legislation uses the term “introduction into” in the definition of sexual connection, and “penetration” in the definition of rape.

Question 28

Q

How can Proof of Penetration be established?

Answer

A

Proof of penetration may be established by:
• the complainant’s evidence
• medical examination, including physical injuries and DNA evidence
• the defendant’s admissions.

Question 29

Q

Explain the subjective and objective test in relation to consent.

Answer

A

SUBJECTIVE TEST
If it is established that the complainant was not consenting, the next question is WHETHER or NOT THE DEFENDANT BELEIVED he/she was consenting at the time. This is a purely subjective test from the defendant’s point of view, i.e. what was the defendant thinking at the time?

If he/she did believe he/she was consenting, an objective test must then be applied to determine whether there was a reasonable basis for his/her belief.
********
OBJECTIVE TEST
The objective test is: WHAT WOULD A REASONABLE PERSON have believed if placed in the same position as the defendant?

If a reasonable person would, in the same circumstances, have believed the complainant was consenting, the jury may well acquit the defendant. If a reasonable person would not have believed he/she was consenting, the jury is more likely to convict.

Question 30

Q

Ingredients for Section 134

Sexual Conduct with young person under 16

Question 31

Q

Case Law

R v Cox - consent
R v Gutuama

Answer

A

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 judgment”.
********
In R v Gutuama a 27-year-old man was charged with raping a 14-year-old girl following a period of consensual sexual activity. He claimed he had reasonable grounds for believing she was still consenting, prompting the Court of Appeal to clarify the objective test for reasonableness.

R v GUTUAMA
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 32

Q

Definition - Sexual Violation

Answer

A

In general terms, sexual violation is non-consensual sexual connection with another person.

Section 128B of the Crimes Act 1961 creates the offence of sexual violation, while s128(1) defines it in two classes:
• Sexual Violation by Rape.
• Sexual Violation by Unlawful Sexual Connection.

“Rape” is a specific form of sexual violation that involves the non-consensual penetration of the complainant’s genitalia by the offender’s penis.

“Unlawful Sexual Connection” has a wider meaning, and includes any form of non-consensual penetration or oral connection with a person’s genitalia or anus.

Question 33

Q

Rape Section 128(2)

Answer

A

Section 128, Crimes Act 1961
Sexual violation defined

(2) Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis,—
(a) without person B’s consent to the connection; and
(b) without believing on reasonable grounds that person B consents to the connection.

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Sexual Offences Flashcards

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