Other Flashcards
(28 cards)
What is the penalty for sexual violation by rape/UL SC
20 years
What must be proved for sexual violation?
- There was intentional act by the offender
- The complainant did not consent
- The offender did not believe the complainant was consenting
- If the offender did believe she consented, those ground were not reasonable.
Is it a defence to sexually violate someone if they are your spouse?
No - Under 128(4)
What are 3 ways to prove penetration?
- The complainants evidence
- Medical examination, including physical injuries and DNA evidence
- The Defendants admissions
Subjective Test v Objective Test
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 ground for such belief were not reasonable (objective test)
What is the subjective test?
Whether or not the complaint was consenting
What was the complaining thinking at the time?
Crown must prove complainant was not consenting
Then, whether the defendant believed she was consenting
What was the defending thinking at the time?
Objective test
What would a reasonable person have believed if placed in the same position as the defendant?
(R v Gutuama)
Section 128A main points
Does not amount to consent if
1. They dont protest or resist
2. If they allow it due to force, threat or fear
3. Asleep or unconsious
4. impaired by alcohol or drugd
5. impaired by intellectual, mental or physical condition
6. Mistake about who the person is
7. Mistaken about nature and quality.
What must an be proven in relation to attempts for 129(1) Attempts to commit sexual violation?
To be guilty of an attempt to commit an offence a person must:
- Intent to commit the offence
- Take a real and substantial step towards achieveing that aim
What needs to be proven for attempts?
- Mens rea
- Actus Reas
- Sufficiently proximate
What is the mens rea element for assault with intent to commit sexual violation?
It must be proved that:
- there was intent to have sexual connection with the complianant
- The complainant did not consent to the sexual connection
- The defendant did not believe on reasonable grounds that the complinant was consenting
Discuss section 132(4) of the Crimes Act in relation to a defence of sexual conduct with a child
It is not a defence to a charge that the person believed that the child was of or over the age of 12 years
Discuss section 132(5) of the Crimes Act in relation to a defence of sexual conduct with a child
It is not a defence to a charge under this section that the child consented
Age of a child under section 132
Child means person under the age of 12 years
What are the statutory defences for section 134? (sexual conduct with a YP)
It is a defence if the person charges proves that:
- Before the act, he or she took reasonable steps to find out whether the young person was of or over 16
- He or she believed on reasonable grounds that the YP was of or over 16
- The young person consented
Under section 134, can two 15 year olds be charged with the offence?
Yes if they are under 16 both parties commit the offence. However if one is 15 and one is 16 then only the 16 year old commits the offence
Discuss section 129A of the Crimes Act
Sexual conduct with consent induced by certain threats
1) liable if sexual connection knowing person is induced to consent by threats
2) does indecent act knowing person is induced to consent by threats
5) threats are:
- threat of offence punishable by imprisonment
- does not involve the actual or threatened application of force
b) A threat that he or someone else will make accusation or disclosure about misconduct that will damage the reputation of the victim
c) Threating their occupational or vocational position or commercial relationship.
Can you charge incest if there is no consent from a party?
No - incest is WITH consent, otherwise it would be sexual violation
Are adopted parents included in incest?
Yes but not step parents
If only one parent adopts, the other spouse is not an adoptive parent so cannot be charged with incest
Defence for meeting young person following grooming
Under 131B(2), it is a defence to charge under subsection(1) if the person charged proves that
- he or she took reasonable steps to find out whether the young person was or of the age of 16
- At the time he or she took the action, he or she believed on reasonable grounds that the young person was of or over the age of 16
When is grooming complete?
When the parties meet or the defendant travels or makes arrangements to meet the complainant with the relevant intent.
Discuss bestiality and indecency with an animal
Section 143
- 7 years for commiting bestiality
- Offence is complete upon penetration
Section 144
- 3 years for commiting any indecent act with an animal
Discuss section 44 of the Evidence Act 2006
Generally, no evidence or questions (without judges permission) can be put to the complainant about their sexual experience with any person other than the Defendant.
- Does not apply if Defendant is a party to as there will need to be relation to the person who had the sexual experience.
Discuss section 87 and 88 of the Evidence Act 2006
87 - This section protects a witness from having to state their address and having questions put to them about that information. Includes town or community.
88 - Same thing above for their occupation
