Sexual Offences

Question 1

Sexual violation by Rape
S128(1)(a) CA61 (20yrs)
- ingredients

Answer 1

1. A person
2. Rapes
3. Another person

Question 2

Sexual violation by unlawful sexual connection
S128(1)(b) CA61 (20yrs)
- ingredients

Answer 2

1. A person
2. Has unlawful sexual connection with
3. Another person

Question 3

Assault with intent to commit sexual violation
S129(2) CA61 (10yrs)
- ingredients

Answer 3

1. A person
2. Assaults
3. Another person
4. With intent to commit sexual violation of the other person

Question 4

Sexual conduct with a Child under 12
S132 x 3 CA61
- ingredients

Answer 4

A person;

(1) Has sexual connection with a child (14yrs)
(2) Attempts to have sexual connection with a child (14yrs)
(3) Does an indecent act on a child (10yrs)

Question 5

Sexual conduct with a Young Person under 16
S134 x 3 CA61
- Ingredients

Answer 5

A person;

(1) Has sexual connection with a young person (10yrs)
(2) Attempts to have sexual connection with a young person (10yrs)
(3) Does an indecent act on a young person (7yrs)

Question 6

Indecent Assault - S135 CA61 (7yrs)

- ingredients

Answer 6

1. A person
2. Indecently assaults
3. Another person

Question 7

Rape

- definition

Answer 7

Non-consensual penetration of the complainant’s genitalia by the offenders penis.

Question 8

Unlawful sexual connection

- definition

Answer 8

Any form of non-consensual penetration or oral connection with a person’s genitalia or anus

Question 9

Sexual connection

- definition

Answer 9

A) connection effected by the introduction into the genitalia or anus of one person (except for genuine medical purposes)
- A part of the body of another person
- An object held or manipulated by another person
or
B) Connection between the mouth or tongue of one person and part of another persons genitalia or anus.
or
C) The continuation of a kind described in A) and B)

Question 10

Sexual Violation - what must be proved?

Answer 10

• An intentional act involving sexual connection, and
• The complainant did not consent, and
  
  • No belief the complainant was consenting, or
  • If they did believe the complainant consented, the grounds for such a belief were not reasonable

Question 11

Penetration and Connection

- definition

Answer 11

For 128(1)(a) Any degree of penetration, no matter how slight or fleeting, is sufficient

For 128(1)(b) Introduction to the slightest degree is enough to effect a connection.

Question 12

Proving penetration

Answer 12

• The complainants evidence
• Medical examination, including physical injuries and DNA evidence
• The defendants admissions

Question 13

Genitalia

- definition

Answer 13

Includes any 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)

“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.” R V KOROHEKE

Question 14

Penis

- definition

Answer 14

Includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis.

Question 15

Consent

- definition

Answer 15

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

“Consent must be full, free, voluntary and informed, freely and voluntarily given by a person in a position to form a rational judgment.” - R V COX

Question 16

Consent - what must be proven?

Answer 16

• The complainant did not consent
  (what was the complainant thinking at the time - subjective test)
• The offender did not believe the complainant was consenting
  (it’s not for the defendant to prove that she was consenting - subjective test)
• If they did believe there was consent, the grounds for such a belief were not reasonable
  (would a reasonable person if placed in the same position as the defendant believe there was consent - objective test)

“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.” - R V GUTUAMA

Question 17

Reluctant consent

- definition

Answer 17

Consent given reluctantly or hesitantly, and may be regretted afterwards does not make it unlawful, provided it was given without fear of the application of force or the result of actual or threatened force.

Question 18

When is consent relevant?

Answer 18

The material time when consent, and belief in consent, is to be considered is at the time the act actually took place.

Question 19

What matters do not constitute consent?

Answer 19

• Not protesting or offering physical resistance to the activity.
• While asleep or unconscious.
• Allows activity because of force.
• So affected by alcohol or some other drug that they cannot consent or refuse to consent to the activity.
• Mistaken as to who the other person is.
• So affected by an intellectual disability or physical impairment of such a nature and degree that they cannot consent to refuse to consent to the activity.
• Mistaken as to the nature and quality of the act.

Question 20

Force, threat or fear of force

- definition

Answer 20

Consent obtained by actual or threatened application of force to any person, or because of an honestly held fear of force.

“It is important to distinguish between consent that is freely given and submission by a women to what she may regard as unwanted but unavoidable.” - R V KOROHEKE

Question 21

What is Attempted Sexual Violation?

Answer 21

Must intend to commit the full act of sexual violation and take a real and substantial step towards achieving that aim.

Question 22

What needs to be proven and/or considered for attempted sexual violation?

Answer 22

• Intent
• Mens Rea
• Sufficiently proximate

Question 23

Assault with intent to commit sexual violation

- definition

Answer 23

S129(2) - requires proof of an assault.
The assault need not be of an indecent nature provided it is done with the intention of, and for the purposes of, committing a sexual violation.

Question 24

When is a charge under S132 appropriate as opposed to S128?

Answer 24

In those exceptional and rare circumstances where a child under 12 is apparently ‘consenting’ in the sense they are a compliant participant in the sexual activity.

While consent is a defence under S128, the consent of the child is not a defence under S132.

Question 25

Can a child give consent?

Answer 25

It is not reasonable for an adult to believe a child was consenting to sexual activity.
Consent is no defence under S132

“Save in exceptional and rare circumstances, even where they indicate an agreement to the act occurring, no reasonable adult would have grounds for believing that a ten or eleven year old has the experience or maturity to understand the nature and significance of the act.” - COX V R

Question 26

What is a defence under S134?

Answer 26

The defendant is able to prove that at the time of the sexual activity;

• they took reasonable steps to ascertain the young person was at least 16 AND
• they believed on reasonable grounds that the young person was at least 16 AND
• the young person consented.

The wider the age and maturity gap, the harder it will be to establish this defence.

Question 27

Proof of age

Answer 27

An essential ingredient of the charges under S132 and S134.

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

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.” - R V FORREST & FORREST

Question 28

Child v Young Person

Answer 28

Child = under 12 years of age (11yrs and under)

Young Person = under 16 years of age (15yrs and under)

Question 29

Indecent act

- definition

Answer 29

An act that has sexual connotations and involves conduct directed at a person that is offensive to public moral values, without consent.

It must be judged in light of the time, place and circumstances, and something more than trifling and be sufficient to ‘warrant the sanction of the law’.

“Indecency means ‘conduct that right-thinking people will consider an affront to the sexual modesty of the complainant.’” - R V COURT

Question 30

Indecent Assault

- definition

Answer 30

“The definition of indecent assault is an assault accompanied with circumstances of indecency.” - R V LEESON

Prosecution must prove;

• it was an intentional assault
• the circumstances were indecent
• The defendant intended the conduct that a reasonable person would find indecent.

Indecent = not conforming with generally accepted standards of behaviour.

Question 31

Assault - in relation to S135 CA91

Answer 31

Requires proof of an assault, although it does not need to be forceful or violent, a gentle caress may suffice.

Includes attempts to apply force and threats by act or gesture to apply force.

Question 32

Sexual conduct by coercion S129A CA61

- definition

Answer 32

Sexual consent induced by certain threats.
Includes sexual connection or indecent act.
The act can be with another person or on themselves..

Question 33

Incest S130 CA61

- definition

Answer 33

(1) Sexual connection is incest if;
(a) between 2 people whose relationship is
- parent / child
- siblings / half siblings
- grand parent / grand child AND
(b) The person charged knows of the relationship

Must be over 16 years old to be charged with incest.