Flashcards in Sexual Offences 007 Deck (60)
Unlawful sexual connection
Section 128(3), Crimes Act 1961
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.
Rape Sec 128(2), CA 1961
Sec 128(2), CA 1961
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.
Section 2, Crimes Act 1961
(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).
What does the Crimes Act say about the meaning and degree of introduction/penetration?
s2(1A), CA 1961
Introduction to the slightest degree is enough to effect a connection
What are the three ways in which proof of penetration may be provided.
- complainants evidence
- medical examination (DNA, injuries)
- accused's admissions
S2, CA 1961
Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male or female or of indeterminate sex).
R v Koroheke
The genitalia comprise the reproduction organs, interior and exterior … they include the vulva [and] the labia, both interior and exterior, at the opening of the vagina.
s2, CA 1961
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).
What is the provision in s127?
s127, CA 1961
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.
Outline the subjective/objective test in relation to consent, What makes Sexual connection Unlawful ?
The Crown must prove that:
The complainant did not consent to the sexual act (subjective) AND
The offender did not believe the complainant was consenting (subjective) OR
If he did believe she was consenting, the grounds for such a belief were not reasonable (objective)
R v Cox re consent.
Consent must be "full, voluntary, free and informed...freely and voluntarily given by a person in a position to form a rational judgement".
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.
Explain the provisions relating to matters that do not constitute consent.
Crimes Act 1961, Section 128A
Circumstances in which a person allows sexual activity but it does not amount to consent:
- force, threat or fear of violence
- lack of protest or resistance
- asleep or unconscious
- affected by alcohol or drugs
- intellectual, mental or physical impairment
- mistaken as to identity
- mistaken as to nature and quality of act
Discuss R v Koroheke re force, threat or fear of force.
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.
What are the two offences under s129?
(1) Attempted sexual violation
(2) Assault with intent to commit sexual violation
s72(1), Crimes Act 1961
Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
List three examples of circumstantial evidence from which an offender's intent may be inferred.
- offender's actions and words before, during and after the event
- surrounding circumstances
- nature of the act itself
What were the findings in R v Harpur re attempts?
R v Harpur
An attempt includes "an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime".
R v Harpur re acts that may be sufficiently proximate.
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.
Crimes Act 1961, Section 2
Assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose
What is required to prove the mens rea element of Assault with Intent to Commit Sexual Violation?
At the time of the defendant's conduct he
- Intended to have sexual connection with the complainant, AND
- The complainant did not consent to the intended sexual connection, AND
- The defendant did not believe on reasonable grounds that the complainant was consenting
Outline Cox v R re consent of a child.
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.
Cox v R re reasonable belief in consent of a child.
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.
Explain s132(4)(5) Ca 1961
(4) Its not a defence to a charge of sexual conduct with a child that the offender believed the complainant was 12 years of age or over.
(5) its not a defence to a charge of sexual conduct with a child that the child consented
Crimes Act definition of child.
A person under the age of 12 years (s132(6)(a))
Discuss how to prove age.
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.
In practice this generally involves producing the victim's birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
An act that is "indecent" has sexual connotation and involves conduct directed at a person that is offensive to public moral values
R v Court
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant].”
What are the statutory defences listed in 134(4) and (5)?
(4) Married to the young person
(5) The young person cannot be charged as a party to the offence if the offender was 16 yrs or over at the time
Crimes Act definition of young person.
A person under the age of 16 years (s134(6)(a))
What does the defendant need to prove for a statutory defence to a charge under Crimes Act 1961, Section 134A?
- He/She had taken reasonable steps to ascertain that the young person was at least 16y or over AND
- He /She believed on reasonable grounds that the young person was at least 16y or older AND
- The young person consented.