Sexual Offences Flashcards
Offence s 325 Sexual Penetration Without Consent (14 yrs). What are the elements?
1 Sexual penetration - defined s 319 - into five parts (a)-(e).
2 Without consent defined s 319(2).
* [Mistake of fact as to consent (s 24)]
offence s 326: Aggravated sexual penetration without consent. What are the elements?
1 sexual penetration - s 319(1).
2 circumstances of aggravation s 319(1) and defined in s 221.
3 without consent s 319(2).
What is s 319(1) and the elements?
provides the rule - defining provision.
Circumstances of aggravation.
Sexual penetrate.
Without consent.
Sexual penetration - 1 st element cases?
Penetration does not mean whole of the penis or object, in order for it to meet with definition: Herbert v R [2002] WASCA 362
Cunnilingus defined in which case?
R v Randall (1991)[unreported SCSA 6/6/91]
Persuasive argument or definition s 319 and s 325 : ‘the whole of the vaginal area - penetration for labia’. Even more relevant ‘cunnilingus is defined as the licking or sucking of vagina or sucking with tongue or mouth and no distinction drawn between inner and outer aspects of labia’.
Consent and submission s 319(2)(a) Crim Code - Consent and Submission?
a Consent means consent freely and voluntarily given and withou in any way affecting meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means.
b Submission s 319(2)(b) where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act.
Kimmorley v Atherton [1971] Qd R 117
Non-fatal non- sexual offences
*Victim has posed in photos with 2 your employees of department store
*The two accused photographed each other kissing the victim and were initially convicted of unlawful assault. However, on appeal, the court stated that the act of kissing very rarely involved express consent and was normally implied or tacit.
*Courts held that she was Not a willing participant but not that she did not consent; - a matter of law and context.
*A failure offer physical resistance; impression that willing participant and consent are different things
What is the Age of Consent?
S 319(2)(c) - has structural significance with definition: child under age of 13 years is incapable of consenting to an act which constitutes an offence against the child.
Technically in WA, age of consent is 13 yrs, but elements of offences break it down and define it differently. Various descriptions, because different offences carry various penalties. Can be 13,16 to 18 yrs.
s 319(2)(c) child 13 incapable of consent…
s320(1) specific offence - defines child means under 13 yrs.
s321(a) - child means over 13, under 16
Practically - 16 yrs, but imprecise and varies.
Holman v R [1970] WAR 2 (not good law) - predated Code.
Justice Jackson said ‘a victim’s consent to intercourse may be hesitant, reluctant or grudging or tearful it can still be consent. (difficult to prosecute this).
Ibbs v The Queen [1988] WAR 91
1 Chief Justice Burt said ‘Holman definition of consent no longer a safe direction’. Recent amendment to Code make is clear that consent is defined as freely and voluntarily given. Whether that fact is entirely a question for the jury, but for myself it would be a misdirection to tell jury that matter of law as given would be of that quality. ‘Free and voluntary is much more than a conscious permission.’ Holman no longer good law.
2 Once consent withdrawn then act of sexual penetration or touching, must stop when consent needs to be immediately withdrawn. It turned on 3 secs of withdrawing consent and cessation of sexual penetration. Stitch up, concocted story/lie.
Case stated by DPP (no 1 of 1993) 66 A Crim R 259 (about Consent).
M & accused married. M had flash backs, as had been abused as child. Froze during sex. Prosecutor asked if he forced himself on her, he said ‘could have been looked at that way’. He then went on to deny sex without consent. Judge said ‘attempting to get her to change her mind… and may involve a measure of rougher than usual handling. Accused was acquitted. Let’s make sure direction never given again.
Wagenaar r R [2000] WASCA 325
Consent v Submission
Disturbing rape of niece - 12/13 yrs and 15 yrs (offences dated back to 1970). Did not consent, but he was my uncle and he did it. She was intimidated, virgin and Christian.
Crt Crim Appeal said that was then, but now consent is: free and voluntary.
Doctrine Stari Decisis - bound by own decision, but Crim Appeal, not bound anyway and could change it because attitudes have moved on, and was wrong decision from 1970s.
Saibu v R (1993) 10 WAR 279
Consent
Unconsciousness - can’t consent if unconscious. Consent could change if both consenting adults, or unconsciousness is envisaged. Some jurisdictions question whether should stop it.
R v Redgard [1956] St R Qd 1
* R v Slade (1982) 7 A Crim R 43
Both cases travel together, both issue of changing consent.
Ibbs an example, as consent withdrawn so then becomes non-consensual.
*Michael v WA (2008) 183 A Crim R 348
Consent obtained by fraud
Man convicted by a jury of five charges without consent. Used fake police bade, convincing two prostitutes. First prostitute (P) - threat. She submitted because of threat he made posing as police officer.
Second prostitute (T), had to be free sex, unprotected, she had tear:
s 319(2) defining consent has to be free and voluntary, not force threat or intimidation. Focus was threats and intimidation. Don’t need to be directed at victim, nor immediate. Here directed at victim but not immediate and threat of blackmail suffices, doesn’t have to be violence.
Judge stopped, gave jury direction:
question of context and mattered here:
both been in trouble with law, drug addicts and here submission and not consent. Consent vitiated by fraud.
Papadimitropoulos (1957) 98 CLR 249
HC Decision - told woman that they were married, both Greek and presented marriage forms, but not married. He lied elaborately. They had sex several times, he leaves and ghosts her.
He was acquitted initially. Court drew a distinction between:
1. fraud in factum (physical nature of act);
2. fraud in ‘inducement’ (why they consent to act).
She knew nature of act, this induced the consent. This not fraud in factum - negates consent, but inducement - does NOT negate it.
Mobilio (1990) 50 A Crim R 170
Consent
Poorly applied - distinction between fraud and fraud in inducement. Appellant said I need to insert this equip into vagina, she said ‘yes’. His defence was consent established. He was acquitted, but on appeal convicted. Fraud is effective. Court said no there was consent.
Generally fraud less serious than force (sentence wise).
s 319(2)(a) ‘obtained by deceit or any fraudulent means’.
So fraud in inducement is captured under this rule.
Does fraud vitiate consent?
Yes. Considered deliberate lying.
What acts vitiate consent, as a matter of law?
Falsely proclaiming undying love.
Falsely claiming intent to marry can vitiate consent.
Assurance that dexterity in sex.
Falsely claiming - unmarried.
Lying to your spouse that you have job.
Flowers appear outside your door and other pretends they are from them.
Proffering a prostitute a worthless cheque.
R v Linekar [1995] QB 250 UK
Man told prostitute he would pay her 25 pounds. Had no money nor intention. Availed himself of her and after ran off not paying. Found NOT guilty. analogous to worthless cheque.
Fraud in inducement.
English position = would not vitiate consent, whereas Aust does.
R v Cuerrier (1998) 2 SCR 371
Canadian take on the issue: whether deceiving partner lying about having serious disease like AIDs, and whether that vitiates consent.
F: HIV - 18 mth relationship with partner, KM. Partner unaware of diagnosis until end of relationship and BH was only aware when she found out he had hepatitis and led to further enquiries. Neither woman contracted HIV, so GBH but was also sex penetration without consent. Not through lying, but through non-disclosure. Without disclosure, cannot have consent, otherwise consent with partner with HIV.
There exists a positive duty to disclose.
* Discussed in Michael (lead WA case). Crt seemed to think it would apply.
WA position = not entirely certain re: non-disclosure because actual lie - yes, but need causal link (so obtained by), not just lie. It must cause the consent, and substantially contribute to the consent.
