Sexual Violation

Question 1

What needs to be proved?

Answer 1

Crown must prove beyond reasonable doubt:

• Intentional act by the offender involving sexual connection with the complainant, and
• complainant did not consent to the sexual act, and
• offender did not believe the complainant was consenting, or
• offender did believe the complainant was consenting, the grounds for such a belief were not reasonable.

Therefore any investigation must prove:

• offender knew they did not have victim’s consent but acted anyway (offender’s mens rea)
• the offender’s grounds for believing in the consent were unreasonable.

Question 2

No Legal Spouse Defence

Answer 2

Spouse who sexually violates their spouse has no legal defence due to the couple are legally married.
Sec. 128(4), Crimes Act 1961

Question 3

No presumption because of age

Answer 3

There is no presumption of law that a person is incapable of sexual connection because of his or her age.
Sec. 127, Crimes Act 1961

Question 4

What makes sexual connection unlawful?

Answer 4

Consent:

• Subjective Test
• Subjective Test
• Objective Test

Question 5

Reluctant Consent

Answer 5

Court held true consent can be given reluctantly or hesitantly and may be regretted afterwards. Unless it is provided without fear of, application of, threatening of force.

Question 6

R v Clarke

Answer 6

Rape of 16 year old female:

• Offender affected by alcohol
• Argued what may appear to be unreasonable to sober person may not be to drunk person
• Court rejected argument. Term reasonable should not be interpreted as reasonable as offender believed to be.

Question 7

Recklessness as to Consent

Answer 7

Recklessness is not consistent with reasonable belief in consent.

Question 8

Consent: Lack of Protest or Resistance

Answer 8

Does not mean person is consenting. What is relevant is the complainant’s state of mind.

However it is relevant as to whether the defendant belief in consent, and whether the belief was reasonable.

Question 9

Consent: Asleep on Unconscious

Answer 9

Even prior agreement does not constitute consent.

Question 10

Consent: Affected by Alcohol or Drugs

Answer 10

Consent is not invalid simply because the person is intoxicated. The question is whether the person is so affected (level) they cannot understand the situation and give rational & reasoned consent.

Question 11

Consent: Intellectual, Mental, Physical Impairment

Answer 11

The issue is whether the impairment is severe enough to affect the complainant’s capacity to give consent.

Alternative charge: Sec. 138, Crimes Act 1961

Question 12

Consent: Mistaken Identity

Answer 12

Note: the mistake is one made by the complainant submitting to sexual activity and not the defendant.

Question 13

Consent: Mistaken as to Nature and Quality of Act

Answer 13

Consent: If they agree/aware the act is intercourse, they are not mistaken.
Consent: If they agree to an act other than intercourse and intercourse takes place, they have not given their genuine consent.

Question 14

Sec. 129(1), Crimes Act 1961

Answer 14

Attempted Sexual Violation

Question 15

R v Harpur

Answer 15

The courts may view the defendant’s conduct cumulatively, up to when the conduct in question stops, and consider the the conduct as the entirety. Whether it is sufficiently proximate is always relevant, but not definitive.

Question 16

Sec. 129(2), Crimes Act 1961

Answer 16

Assault with Intent to Commit Sexual Violation:

Two Intents

• Assault in hope to change victim’s mind
• Assault intending to commit rape regardless of whether victim changes mind.

Question 17

Sec. 128B, Crimes Act 1961

Answer 17

(1) Sexual violation liable to 20 years Imprisonment
(2) Convict must be sentenced imprisonment unless court thinks person should not be. (3) as guide.
(3)
(a) particular circumstances of person convicted
(b) particular circumstances of the offence.