Sexual Offences Flashcards
(44 cards)
Sexual violation - rape
128(1)(a)
- a person
- rapes
- another person.
Sexual violation - unlawful sexual connection.
128B(1)(b)
Has unlawful sexual connection
With another person.
Def: Genitalia
Includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia.
R v Koroheke
The genitalia comprise the reproduction organs interior and exterior they include the vulva and labia both interior and exterior at the opening of the vagina
R v cox
Consent must be full voluntary free and informed. Given by a person In a position to form a rational judgement.
Subjective/objective test.
Subjective - what was the defendant thinking at the time?
Subjective: was the victim consenting?
Objective - what would a reasonable person have believed if placed in the same position as the defendant.
R v Gutuama
Under the objective test the crown must prove that no reasonable person in the accused’s shoes could have thought the complainant was consenting.
R v Koroheke - Force, threat, 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. 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.
Rape defined.
Person A rapes person B if person A has sexual connection with person B effected by the penetration of persons Bs genitalia by person A’s penis.
With person B consent to the connection.
Without believing on reasonable grounds that person B was consenting to the connection.
Sexual violation defined
Person A has unlawful sexual connection with Person B if person A has sexual connection with person B
With person B consent to the connection.
Without believing on reasonable grounds that Person B was consents to the connection.
Attempts to commit sexual violation.
129(1) CA 1961
Attempts to commit
Sexual violation of the other person.
Attempts legislation.
Section 72 CA1961.
Having an intent to commit an offence
Does or ommits an act for the purpose of accomplishing his object
Is guilty of an attempt to commit the offence intended whether is was possible in the circumstances to commit the offence or not.
R v Harpur - does or omits
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 - Acts that may be sufficiently proximate
The court may have regard to the conduct viewed cumulatively uo to the point when the conduct in question stops. The defendants conduct may be considered in its entirely. Considering how much remains to be done is always relevant, though not determinative.
Assault with intent to commit sexual violation.
129(2) CA 1961
Assaults
Another person
With intent to commit sexual violation of the other person.
Sexual conduct with a child under 12
Section 132 CA 1961
(1) has sexual connection with a child
(2) attempts to have sexual connection with a child.
(3) does an indecent act on a child
R v Cox - Consent of a child.
Although we do not exclude that a child of ten or eleven may be able to give a full culinary free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare.
Cox v R - reasonable belief in consent to of child.
Save in exception circumstance 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 had the experience or maturity to understand the nature and significance of the act.
R v Forest and forest. - proof of age
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.
R v court - indecency
Indecency means conduct that right thinking people will consider an affront to the sexual modesty of the complainant.
Sexual conduct with a young person under 16
Section 134 CA 1961.
(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.
Indecent assault
Section 135 CA 1961
- indecently assaults another person.
R v lesson - indecent assault definition
The definition of indecent assault is an assault accompanied with circumstances of indecency
Sexual conduct by coercion
Section 129A CA 1961
(1) has sexual connection with another person knowing that the other person has been induced to consent to the connection by threat.
(2) does an indecent act on another person knowing that the other person has been induced to consent to the act by threat.
