Topic 5 - Sexual offences Flashcards
(21 cards)
Historical definition of ‘rape’
‘carnal knowledge of a woman forcibly and against her will’
- narrowly defined, incorporated sexist views
- women could not be guilty, nor a man of raping another man
Contemporary definitions of ‘rape’
- not focused on force, but lack of consent
Historical rape presumptions
- boys u/14 could not be guilty of rape
- husband couldn’t be guilty of raping his wife
- husband could be guilty of raping his wife if they were living apart due to a court order
Reasons for low levels of convictions
- attrition of sexual assault cases at various stages
- treatment of complainants
- evidence
- sexual assault myths/stereotypes
Crimes Act s 38
Rape
- A sexually penetrates B
- B doesn’t consent (no consent/CGC)
- intention to sexually penetrate
- A does not have reasonable belief that B consents
Crimes Act s 35A
Sexual penetration
Crimes Act s 36
Consent
Consent
- Crimes Act s 36
- consent means free and voluntary agreement
- not resisting doesn’t give consent
- past actions don’t imply consent
Crimes Act s 36AA
Consent negating circumstances
Crimes Act s 36A
Reasonable belief in consent
- depends on the circumstances
- A must do or say something to see if B consents
Jury Directions Act s 46
Meaning of consent
Jury Directions Act s 47
Reasonable belief in consent
Jury Directions Act ss 47A-47I
- directions addressing certain misconceptions jurors may have
Consent negating circumstances
- doesn’t say/do anything to indicate consent
- lacks capacity
- asleep/unconscious
- submits due to force / fear of force/ harm
- mistaken belief as to identity of the person / purpose of the conduct
Bakshi v The Queen (2018)
- A must take some steps to ascertain whether B was prepared to have sex or … whether there was ‘free agreement’ to sexual intercourse.
- Otherwise, given those circumstances, any belief in consent would not have been a reasonable belief.”
Crimes Act s 36B
Effect of intoxication on standard to be applied in determining reasonable belief
Crimes Act s 35B
Touching
Crimes Act s 40
Sexual assault
- A intentionally touches B
- the touching is sexual
- B does not consent
- A doesn’t reasonably believe B consents
Crimes Act s 39
Rape by compelling sexual penetration
- A intentionally causes B to …
- B doesn’t consent
- A doesn’t reasonably believe V consents
Crimes Act s 41
Sexual assault by compelling sexual touching
- A intentionally causes B to …
- the touching is sexual
- B doesn’t consent to the touching
- A doesn’t reasonably believe V consents
Crimes Act s 43
Threat to commit a sexual offence
- AR: A makes a threat to B to rape/sexually assault B or a third person C
- MR: A intends B will believe or believes B will probably believe A will carry out the threat
