Attempted sexual violation Flashcards
Attempted Sexual Violation
Section, Penalty, Elements
CA61; S129(1)
10 Years
- Every one who
- Attempts to commit sexual violation
- Of the other person
Person
Gender neutral. Proven by judicial notice or circumstantial evidence.
Attempts
S72 Attempts
(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
Intent to commit an offence
The Crown must prove that the defendant intended to commit the full act of sexual violation, and acted as he did for the purpose of achieving that aim.
Intent
Deliberate act: The act or omission must be done deliberately. It must be more than involuntary or accidental.
Intent to produce a result: There must be an intent to produce a specific result. In this context result means, “aim, object, or purpose” (S&B).
Proving Intent
R v Collister
Circumstantial evidence from which an offender’s intent may be inferred can include:
- The offender’s actions and words before, during and after the event
- The surrounding circumstances
- The nature of the act itself.
R v Harpur
Attempt
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”.
Sufficiently proximate
In assessing proximity, the Court will analyse the defendant’s conduct at the relevant time, in conjunction with evidence of his intent based on the circumstances and any steps taken leading up to that point.
R v Harpur
Conduct
“[The Court may] have regard to the conduct viewed cumulatively up to the point when the conduct in question stops …the defendant’s conduct [may] be considered in its entirety. Considering how much remains to be done … is always relevant, though not determinative.”
What are some actions that are sufficiently proximate to constitute an attempt?
(SLURP-E)
- Soliciting an innocent agent to engage in conduct constituting an element of the crime.
- Lying in wait, searching for or following the contemplated victim
- Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed
- Reconnoitring the scene of the contemplated crime
- Possession, collection or fabrication of materials to be employed in the commission of the crime
- Enticing the victim to go to the scene of the contemplated crime
Sexual violation defined
128 Sexual violation defined
(1) Sexual violation is the act of a person who—
(a) rapes another person; or
(b) has unlawful sexual connection with another person.
(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.
(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.
(4) One person may be convicted of the sexual violation of another person at a time when they were married to each other.
Assault with Intent to Commit Sexual Violation
Section, Penalty, Elements
CA61; S129(2)
10 Years Imprisonment
1. A person:
- Gender neutral
RTS
2. Assaults:
- Definition (CA61; S2 - can be shortened eg, the intentional application of force to the person of another, directly or indirectly)
RTS
3. Another person:
- Gender neutral, age irrelevant to the charge
RTS
4. With intent to commit sexual violation:
- Intent (two types; Collister)
- Sexual violation; unlawful sexual connection; rape (as appropriate)
- Penetration and lack of / contact R v Koroheke - Consent (lack thereof) R v Cox / R v Gutuama / R v Koroheke
- CA61; 128A (invalid consent) / R v Adams
- Subjective/Objective test
RTS
Assault
CA61; S2
Assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, the present ability to effect his purpose.
Intent
In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.
Assault and intent regarding attempted sexual violation
The offender may assault the victim:
- In the hope that the complainant will then change their mind and consent to the act, or
- Intending to commit rape or sexual connection regardless of whether the complainant changes their mind.
If the offender is only trying to change the complainant’s mind, they will be liable for assault or indecent assault if applicable.
If determined to commit the sexual violation , and the assault is merely a preliminary, they will be liable for attempted sexual violation - or assault with intent to commit sexual violation, depending on the proximity between the act and the intended offence.
