Sum Notes 2 Flashcards
Liability for Unlawful Sexual Connection:
Sexual Violation by Unlawful Sexual Connection
Crimes Act 1961, Section 128 (1) (b)
20 years imprisonment
- A Person
- Has unlawful sexual connection
- Another Person
Definition of a person
Gender neutral. Generally accepted by judicial notice or proved by circumstantial evidence.
Definition of sexual connection
(a) Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of -
- a part of the body of another person; or
- an object held or manipulated by another person; or
(b) Connection between the mouth and tongue of one person and a part of another person’s genitalia or anus; or
the continuation of connection of a kind described in paragraph (a) or (b)
Definition of 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).
Definition of a 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).
How much penetration is required and how can you prove penetration?
Introduction of the penis to the slightest degree is enough to effect a connection.
1) The complainants evidence.
2) Medical examination including injuries and DNA.
3) The defendants admissions.
How can you prove intent?
The offender’s actions and words before, during and after the event.
The surrounding circumstances.
The nature of the act itself.
What is the three step reasonableness test in regards to consent?
Subjective 1: What was the complainant thinking at the time, was she consenting?
Subjective 2: If she wasn’t consenting did he believe she was consenting? What did the offender believe at the time?
Objective: What would a reasonable person have believed if placed in the same position as the defendant?
Under Section 134A(1) what is the defence to a charge of sexual conduct with a young person under 16 years?
1) Before the time of the act concerned, he or she took reasonable steps to establish the young person was over 16 years, and
2) at the time of the act concerned, he or she believed on reasonable grounds that the young person was aged 16 years or over, and
3) the young person consented.
(before act, at the time of, consent)
Liability for Indecent Assault:
Indecent Assault
Crimes Act 1961, Section 135
5 years imprisonment
- Everyone who
- Indecently assaults
- Another Person
Definition of Assault:
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 or she has, present ability to effect his or her purpose
Definition of Indecent:
An act that is ‘indecent’ has sexual connotations and involves conduct directed at a person that is offensive to public moral values.
What is the case law regarding genitalia?
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.
What is the case law regarding consent?
R v COX
Consent must be ‘full, voluntary, free and informed’… freely given by a person in a position to form a rational judgement.
(FVFI)
What is the case law regarding the objective test?
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”.
What is the case law regarding proving age?
R v FORREST and FORREST
In practice proving age generally involves producing the complainant’s 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 bu the prosecution in proof of the victim’s age”.
What is the case law regarding indecent assault?
R v LEESON
The definition of ‘indecent assault’ is an assault accompanied with circumstances of indecency.
What is the case law regarding an indecent act?
R v COURT
Indecency means conduct that right-thinking people would find an affront to the sexual modesty of the complainant.
What is the case law regarding intent (attempts)
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. (not as individual acts)
Considering who much remains to be done… is always relevant, though not determinative.
What are some investigative procedures that could be carried out initially for a victim of rape?
Ensure victims safety.
Obtain scoping interview.
Preserve clothing, noting marks, tears etc.
Wrap victim in clean sheet.
Ensure no cross-contamination with offender.
Advice on toileting (not wiping etc).
No drinks, food or smokes.
Organise medsac examination.
Identify potential witnesses.
Identify location of rape - CCTV, evidence at scene
With regards to rape, what are matters which do not constitute consent?
Not protesting or offering physical resistance to use of force.
Application/threat/fear of force to self or other.
Asleep or unconscious.
So affected by alcohol/drugs they cannot consent.
So affected by mental/physical impairment.
Mistaken ID.
Mistaken as to nature and quality of the act.
For a charge of incest, what must be proven?
The accused had knowledge of the relationship
sibling, half-sibling, parent-child, grandparent-grandchild
What three elements are required for an attempt offence?
1) Intent (means rea) - to commit offence.
2) act (actus reus) - that they did, or omitted to do,
something to achieve that end.
3) proximity - that their act or omission was sufficiently
close.
What is the definition of ‘Actus Reus’?
The commission of a guilty act.
