Sexual Assaults

Question 1

Sexual violation by rape - section and elements

Answer 1

s128(1)(a) CA61

A person
Rapes
Another person

Question 2

Sexual violation by unlawful sexual connection - section and elements

Answer 2

s128(1)(b) CA61

A person
Has unlawful sexual connection
With another person

Question 3

Assault with intent to commit sexual violation - section and elements

Answer 3

s129(2) CA61

A person
Assaults
Another person
With intent to commit sexual violation of the other person

Question 4

Sexual conduct with a child under 12 - section and elements

Answer 4

s132 CA61

A person
(1) has sexual connection with a child
(2) attempts to have sexual connection with a child
(3) does an indecent act on a child

Question 5

Sexual conduct with a young person under 16 - section and elements

Answer 5

s134 CA61

A person
(1) has sexual connection with a young person
(2) attempts to have sexual connection with a young person
(3) does an indecent act on a young person

Question 6

Indecent assault - section and elements

Answer 6

s135 CA61

A person
Indecently assaults
Another person

Question 7

Definition of sexual violation

Answer 7

s128
(1) Sexual violation is the act of a person who -
(a) rapes another person; or
(b) has unlawful sexual connection with another person

Question 8

What must be proved in SV offences?

Answer 8

• there was an intentional act by the offender involving sexual connection with the complainant, AND
• the complainant did not consent to the sexual act, AND
• the offender did not believe the complainant was consenting, OR
• if he did believe she was consenting, the grounds for such a belief was unreasonable

Question 9

Definition of sexual connection

Answer 9

(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 (a) or (b)

Question 10

Definition of penetration

Answer 10

Introduction to the slightest degree is enough to effect a connection, no matter how slight or fleeting

Question 11

Proving penetration

Answer 11

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

Question 12

Definition of genitalia

Answer 12

Includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female, or of indeterminate sex)

Question 13

Case law - genitalia (female)

Answer 13

R v Koroheke

The genitalia comprise the reproductive organs, interior and exterior, they include the vulva and the labia, both interior and exterior, at the opening of the vagina

Question 14

s127 CA61

Answer 14

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

Question 15

Test regarding consent for sexual connection - unlawful or not

Answer 15

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), AND
if he did believe she was consenting, the grounds for such a belief were not reasonable (an objective test)

whether or not the complainant was consenting is from the complainant’s point of view
for offender’s belief of complainant consenting, see R v Gutuama
Objective test - what would a reasonable person have believed if placed in the same position as the defendant?

Question 16

Definition of consent

Answer 16

A person’s conscious and voluntary agreement to something desired or proposed by another.

Question 17

Case law - consent

Answer 17

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 judgement”.

Question 18

Case law - objective test of consent

Answer 18

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 19

Matters not constituting consent - s128A

Answer 19

(1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.
(2) A person does not consent to sexual activity if he or she allows the activity because of—
(a) force applied to him or her or some other person; or
(b) the threat (express or implied) of the application of force to him or her or some other person; or
(c) the fear of the application of force to him or her or some other person.
(3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.
(4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
(5) A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
(6) One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.
(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.
(8) This section does not limit the circumstances in which a person does not consent to sexual activity.
(9) For the purposes of this section,—
allows includes acquiesces in, submits to, participates in, and undertakes
sexual activity, in relation to a person, means—
(a) sexual connection with the person; or
(b) the doing on the person of an indecent act that, without the person’s consent, would be an indecent assault of the person.

Question 20

Case law - consent due to fear

Answer 20

R v Koroheke

It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.

Question 21

Definition of rape **

Answer 21

s128(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

Need to define CAPS words in RTS.

Question 22

Definition of unlawful sexual connection

Answer 22

s128(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

Need to define CAPS words in RTS.

(not gender specific roles or who is the pentrated or penetrator)

Question 23

Case law - attempts

Answer 23

R v Harpur

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.

Question 24

Proving assault with intent to commit SV - mens rea

Answer 24

At the time the defendant assaulted the complainant he:
- intended to have sexual connection with the complainant, AND
- the complainant did not consent to the sexual connection, AND
- the defendant did not believe on reasonable grounds that the complainant was consenting

Question 25

Case law - consent U12

Answer 25

Cox v R Although we do not exclude the possibility that a child of ten or eleven may be able to give a full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare. A ten or eleven year old child may know what sexual intercourse is. She may indicate her agreement.

Question 26

Case law - reasonable belief in consent of U12

Answer 26

Cox v R Save in exceptional and rare circumstances, even where she indicates an agreement to the act occurring, no reasonable adult would have grounds for believing that a ten or eleven year old girl has the experience or maturity to understand the nature and significance of the act.

Question 27

Case law - proving age

Answer 27

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 28

Definition of indecent act

Answer 28

One person does an indecent act on another person whether he or she - (a) does an indecent act with or on the other person; or (b) induces or permits the other person to do an indecent act with or him or her

Question 29

Case law - indecency

Answer 29

R v Court Indecency means "conduct that right-thinking people will consider an affront to the sexual modesty of the complainant"

Question 30

Defence to charge under s134

Answer 30

If the person charged proves that - (a) before the time of the act concerned, he or she had taken reasonable steps to find out whether the young person concerned was of or over the age of 16 years; AND (b) at the time of the act concerned, he or she believed on reasonable ground that the young person was of or over the age of 16 years; and (c) the young person consented

Question 31

Case law - definition of indecent assault

Answer 31

R v Leeson The definition of 'indecent assault' is an assault accompanied with circumstances of indecency.

Question 32

What must the prosecution prove in indecent assault

Answer 32

- 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 If the issue of consent is raised, the prosecution must prove BRD that: - the complainant did not consent to the assault - the defendant did not honestly believe the complainant was consenting