Sexual Conduct with a Young Person Under 16

Question 1

Section and Penalty

Answer 1

CA61; Section 134:

(1) Has sexual connection with - 10 years
(2) Attempts to have sexual connection with - 10 years
(3) Does an indecent act on - 7 years

Question 2

Elements

Answer 2

CA61; s134(1):

• *1. A person:**
• Gender neutral

2. Has sexual connection:
- Definition (CA61; s2)
- Consent (remember consent is not a defence, but there will be an element of it otherwise s128); R v Adams
- s134(4) defence - they were not married to the young person at the time
- s134A - reasonable steps; belief; consent - address this defence
RTS

• *3. With a young person under 16:**
• R v Forrest and Forrest - demonstrate the person’s age

**

CA61; S134(2): Attempts to have sexual connection with

CA61; S134(3): Does an indecent act on

Question 3

Sexual Connection

Answer 3

S2 CA61

Sexual connection means—

(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 paragraph (a) or paragraph (b)

Question 4

Introduction/Penetration

Answer 4

CA61; S2(1A)

Introduction and penetration have the same meaning. Introduction to the slightest degree is enough to effect a connection.

Question 5

Proof of penetration is required

Answer 5

Proof of penetration may be established by:

• Complainant’s evidence
• Medical examination, including physical injuries and DNA evidence
• The defendant’s admissions.

Question 6

Genitalia

Answer 6

CA61; S2

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

Question 7

R v Koroheke

Genitalia

Answer 7

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 8

Penis

Answer 8

CA61; S2

Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female or of indeterminate sex).

Question 9

Indecent Act

Legislation

Answer 9

Section 2(1B):

For the purposes of this Act, 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 on him or her.

Question 10

R v Court

Answer 10

Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant]”.

Question 11

Young Person

Legislation

Answer 11

CA61; S134(6):

In this section,—
(a) young person means a person under the age of 16 years

Question 12

R v Forrest and Forrest

Proving Age

Answer 12

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”

In practice this generally involves producing the complainant’s birth certificate in conjunction with independent evidence that identifies the complainant as the person named in the certificate.

Question 13

R v Herbert - Consent of a young person

Answer 13

Whilst as a matter of common sense, cases will occur where a young person appears to consent but by reason of all the circumstances, including tender years, cannot be taken in fact to have consented, nevertheless in this case the complainant was of a sufficient age for consent to have been reasonably possible.

Question 14

Cannot be convicted

Legislation

Answer 14

CA61; S134(4) and (5):

(4) If he or she was married to the young person concerned.
(5) The young person cannot be charged as a party to the offence if the person who committed the offence was of or over the age of 16 years when the offence was committed.

Question 15

No presumption of law because of age

Legislation

Answer 15

CA61; S127:

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

Question 16

Statutory Defence

Legislation

Answer 16

CA61; S134A:

(1) (a) Before the time of the act, 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, he or she believed on reasonable grounds that the young person was of or over the age of 16 years; and
(c) The young person consented.

Question 17

Not a defence

Legislation

Answer 17

CA61; S134A

(2) Except to the extent provided in subsection (1),—
(a) it is not a defence to a charge under section 134 that the young person concerned consented; and
(b) it is not a defence to a charge under section 134 that the person charged believed that the young person concerned was of or over the age of 16 years.

Question 18

When precise age of complainant is in doubt

Answer 18

• S134 - primarily aimed at 12-15 year olds but overlaps with S132 and covers any person under the age of 16 years
• To avoid the risk of acquittal where the precise age of the complainant is in doubt, charges may be filed in the alternative under ss132 and 134, or if necessary under s134 only.