General Offence Knowledge Flashcards
(38 cards)
In cases of sexual violation the Crown must prove BRD that: (3)
- There was an intentional act involving sexual connection with the complainant
- The complainant did not consent to
- The offender did not believe the complainant was consenting/or if they did, the grounds for such belief were unreasonable
According to s128(4) it is no legal defence if you’re ______
A spouse/married
A spouse who sexually violates their spouse has no legal defence
Proof of penetration may be established by: (3)
- the complainants evidence
- medical examination including physical injuries
- the defendants admissions
What is meant by the
Section 127: 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
Any person of any age is capable in a legal sense, of being involved in sexual connection
So it would not be a defence to say that either party was too young or too old
List all the Matters not constituting consent under 128A (6)
- Alcohol/drugs
- asleep/unconscious
- intellectual/mental/physical disability
- force/threat of force
- mistaken ID
- mistaken of nature/quality
Regarding intellectually/mentally/physically impaired persons, how do you know if their impairment is severe enough make consent invalid?
And what is an alternative charge?
Is the impairment so severe so as to deprive the complainant of the capacity to give or withhold consent?
If the threshold for sexual violation has not been met, but the defendant still took advantage of their vulnerability, consider a charge of:
s138- Sexual Exploitation of a person with significant impairment
Mistaken ID or Mistaken or nature/quality refers to a mistake made by the _________
Complainant -not a mistake by the defendant
Section 129
(1) Attempted sexual violation
(2) Assault with intent to commit sexual violation
What’s the difference?
Both apply to where the offender intends to sexual violate and takes steps toward doing so but full offence is not committed.
- an attempt to commit sexual violation does not necessarily involve an assault
- an assault with intent to commit sexual violation may not be sufficiently proximate to the full offence to constitute an attempt
Both are 10yrs imprisonment
To be guilty of an attempt to commit any offence the person must both
- _______________ and
- _______________
- intend to commit the offence
- take a real and substantial step towards achieving that aim
Proving intent:
Circumstantial evidence from which an offenders intent may be inferred can include…?(3)
- the offenders actions and words before during and after the event
- the surrounding circumstances
- the nature of the act itself
For an Assault with intent to commit sexual violation, does the assault need to be of an indecent nature?
No! Provided it is done with the intention of and for the purpose of committing sexual violation
If the offender assaults the victim in the hope that they’ll change their mind and consent to sex, what charge is appropriate?
Assault- or indecent assault if it’s indecent. They would not be liable for assault with intent to commit sexual violation because they didn’t have the intent to commit the full offence
List the two main forms of sexual violation?
Rape
Unlawful sexual connection
Discuss the penalty provisions for sexual violation in 128B?
It outlines that punishment for sexual violation is up to 20yrs imprisonment, imprisonment should always be imposed, unless special circumstances justify otherwise
In negating consent, the Crown has to prove one of 3 things …what are they?
- the victim did not consent
- the victims consent was not valid (128A)
- the defendant did not believe on reasonable grounds that the victim was consenting
How would you decide whether to charge under 128 (violation) or 132 (sexual conduct with a child)?
Distinction must be drawn between a child who is simply compliant and one truly consenting
Truly consenting (ie full understanding of the act- rare for an <12 yr old Cox v R) would be a reason for a charge under 132 as the element of consent is not met for 128.
It is also extremely rare that it would be reasonable for an adult to believe a child was consenting to sexual actuality anyway.
Under section 132 consent is no defence
What section would sexual conduct with a 12 year old fall into?
134 Sexual Conduct with a YP<16
For 132 to apply the child must be under 12 years.
It is up to the Crown to prove age
What case law applies here?
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution of the victims age
For sexual conduct with a child charges, what if the defendant believed the child was over the age of 12?
Mistake as to age is no defence for section 132
Section 132(3) relates to an indecent act on a child
Describe “indecent act”
Does it matter who does the act?
An act accompanied by circumstances of indecency
Doesn’t matter if
-the offender does the act on the child
-the child does the act on the offender
-the act is mutual
Section 134 applies to victims of what age?
12-15 year olds
Sexual Conduct with a YP under 16yrs
What charge would you use for sexual conduct of a child where you’re not 100% sure of their age?
While s134 is aimed at 12-15yr olds, it’s technically for anyone under 16, so it overlaps with s132.
So if age is in doubt, charges may be filed under both or just 134.
What is the statutory defence to s134
S134A
If the defendant can prove that:
- they took reasonable steps to ascertain the young person was over the age of 16 AND
- at the time of the sex they believed on RGs that the young person was over 16 AND
- the young person consented
R v Leeson defines Indecent Assailt as an assault accompanied by ____________?
Circumstances of indecency
