Sex Offence Definitions

Question 1

Unlawful Sexual Connection

Answer 1

Penetration of a person’s genitalia or anus by part of another persons body

Penetration of a person’s genitalia or anus by an object held or manipulated by another person

Touching of a person’s genitalia or anus by another person’s mouth or tongue

Question 2

Penetrating

Answer 2

Introduction to the slightest degree, no matter how slight or fleeting

Question 3

Genitalia

Answer 3

Includes the penis and testicles of a male, and the vagina and vulva of a female. Includes surgically constructed or reconstructed

Question 4

Consent

Answer 4

Consent is a persons conscious and voluntary agreement to something desired or proposed by another

Question 5

Subjective test - consent

Answer 5

What was the complainant thinking at the time?

What was the defendant thinking at the time?

Question 6

Objective test - consent

Answer 6

What would any reasonable person have believed if placed in the same position as the defendant

Question 7

Section 128A

Answer 7

Allowing sexual activity does not amount to consent in some circumstances

Question 8

128A - 7 circumstances

Answer 8

Lack of protest or physical resistance

Force, threat of force or fear of application of force

Asleep or unconscious

Alcohol or drugs

Intellectual, mental, or physical disability or impairment

Mistaken identity

Mistake about nature and quality of act

Question 9

Continuation

Answer 9

The definition of sexual connection includes continuation of such acts, capturing situations where sexual activity is commenced consensually, but consent is later withdrawn

Question 10

Consent of a young person

Answer 10

The courts have recognised that in some cases young people may be capable of giving legal consent to sexual activity, sufficient to provide a defence to a charge of sexual violation

Question 11

Defence to charge under 134 (need all 3)

Answer 11

1. They had taken all reasonable steps to ascertain that the young person was at least 16
2. They believed on reasonable grounds that the young person was at least 16
3. The young person consented

Question 12

Attempts to…

Answer 12

Intent- A deliberate act to achieve a specific result. Crown must prove defendant intended to commit to the full act of sexual violation and acted as he did for the purpose of achieving that aim.

Question 13

Attempts - crown must prove

Answer 13

1. Intended to have sexual connection with the complainant
2. The complainant did not consent to the intended sexual connection
3. The defendant did not believe on reasonable grounds that the complainant was consenting.

Question 14

Sufficiently proximate

Answer 14

Cumulative assessment may allow the court to infer the defendant had intended to commit the full offence even though he may have been several steps removed from the ultimate act.

Question 15

Does an indecent act

Answer 15

Deals with all forms of sexual activity with a child or young person other than those that involve sexual connection

Question 16

Non-consensual

Answer 16

Where the act is nonconsensual, or where the young persons consent is not legally valid the offender has committed indecent assault which is included in the definition of indecent act

Question 17

Consent of a child

Answer 17

Distinction must be drawn between a child who is simply compliant and one who’s truly consenting based on a full understanding of the act.

Question 18

Reasonable belief in consent of a child

Answer 18

In all but extremely rare cases, it was not reasonable for an adult to believe the child was consenting to sexual activity.

Question 19

Child consent = no defence

Answer 19

Even in the unlikely event that a child’s consent is sufficient to provide a defence to sexual violation, that consent is no defence to a charge of sexual conduct with a child under 12

Question 20

Mistake as to child age = no defence

Answer 20

It is not a defence to a charge under this section that the person charged believed that the child was of or over the age of 12

Question 21

If such an act is done with the consent of the child, it is immaterial whether…

Answer 21

The offender does the act on the child

The child does the act on the offender

The act is mutual