LLB106 - Lecture Notes Sex offences PDF

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LLB106 - Lecture Notes Sex offences...

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SEX OFFENCES Criminal Code Definitions  Penis - includes a surgically constructed penis, whether provided for a male or female (s 1)  Penetrate - penetrate does not include penetrate for a proper medical, hygienic or law enforcement purpose only (s 347).  Carnal Knowledge - (1) If carnal knowledge is used in defining an offence, the offence, so far as regards that element of it, is complete on penetration to any extent. (2) Carnal knowledge includes sodomy (CC s 6). Plain English Definitions:  Female genitalia = clitoris and vulva  Vulva = clitoris, labia majora, labia minora, mons pubis and vagina  Vagina = internal female orifice from the uterus to the exterior  vulva includes a surgically constructed vulva, whether provided for a male or female (s. 1)  vagina includes a surgically constructed vagina, whether provided for a male or female (s. 1)  Anus = internal tract from the rectum to the exterior  Male genitalia = penis  Penis = external male sexual organ (note: s 1 Code definition)  Anus = internal tract from the rectum to the exterior

RAPE CC 349 Rape (CC s 349) (1) Any person who rapes another person is guilty of a crime. Maximum penalty—life imprisonment. (2) A person rapes another person if— the person: Section 349(2)(a): (1) Has carnal knowledge of another (2) Without the other person’s consent Section 349(2)(b): (1) Penetrates vulva, vagina or anus of another (2) To any extent (3) With a thing or part of the person’s body that is not a penis (4) Without the consent of the other person Section 349(2)(c): (1) Penetrates the mouth of another (2) To any extent (3) With a penis (4) Without the consent of the other person

CONSENT s. 348 Meaning of consent  (1) In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. (2) Without limiting subsection (1), a person's consent to an act is not freely and voluntarily given if it is obtained— (a) by force; or (b) by threat or intimidation; or (c) by fear of bodily harm; or (d) by exercise of authority; or (e) by false and fraudulent representations about the nature or purpose of the act; or (f) by a mistaken belief induced by the accused person that the accused person was the person's sexual partner. 

s. 349(3) - For this section, a child under the age of 12 years is incapable of giving consent.

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‘freely and voluntarily’ not defined in code- it is up to jury to make judgement.

Case Law Notes:

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(General) Kake [1960] NZLR 595 - Consent obtained by force, intimidation or false representation as to the nature of the act of sexual intercourse is no consent (Submission) Wagenaar [2000] WASCA 325 – submission does not equal consent. No evidence of physical resistance is needed. (Old View) Holman [1970] WAR 2 - The effect of the amendments was to give “consent” a particular statutory definition different to everyday usage. Prior to the amendment consent to intercourse which was “hesitant, reluctant, grudging or tearful but …consciously permitted” was nevertheless consent which would prevent intercourse being rape. (Multi Verdicts / Gifts) Winchester [2011] QCA 374 – (1) The acquittal of the appellant on some counts and his conviction on others could not be regarded as an “affront to logic and common sense” or indicative of confusion on the jury’s part. The jury were directed to consider each count separately. Their verdicts suggested that they complied with the direction. The jury were entitled to consider some accounts of the complainant more compelling than others. Further, (2) The defect in the primary judge’s summing up was that it conveyed to the jury that they could find that the complainant’s consent was not freely and voluntarily given if they found that the appellant promised the complainant a horse and, but for the promise, she would not have consented to his sexual conduct. The jury should have been instructed that the complainant’s consent should not be regarded as not freely and voluntarily given, regardless of the strength of the inducement provided by the offer of the horse, unless in all the circumstances the complainant was rendered unable to exercise freedom of choice. (Intoxication) Francis [1993] 2 Qd R 300 - that a man who had carnal knowledge of a woman with her consent did not commit rape notwithstanding that her consent was induced by her excessive consumption of alcohol, but a man who had carnal knowledge of a woman who by reason of sleep or a drunken stupor was incapable of deciding whether to consent or not committed rape. Mere intoxication, which may lower the inhibition of the complainant but still leaves them with the ability to consent, will generally not negate consent. (Consent as Q of Fact) R v Bennett (1900) 10 QLJ 147 - the question of consent is a question of fact for the jury to decide. (Onus) R v Bradley (1910) 4 Cr App R 225 – onus is on the prosecution to show lack of consent by complainant. (Onus) R v Flannery and Prendergast [1969] VR 31 - no onus on the defence to prove that there was consent. (Intellectual Impairment) Mrzljak [2005] 1 Qd R 308 - S. 24(1) required consideration of whether an accused's belief, based on the circumstances as he or she perceived them to be, was held on reasonable grounds. It did not require reference to the reasonable man's putative belief. (2) That accordingly evidence of the appellant's intellectual impairment and language difficulties was relevant to his possible excuse from criminal responsibility under s. 24(1). (Intellectual Impairment) R v Morgan [1970] VR 337 - ‘…it must be proved that she had not sufficient knowledge or understanding to comprehend: (a) that what is proposed to be done is the physical act of penetration of her body by the male organ or, if that is not proved, (b) that the act of penetration proposed is one of sexual connection, as distinct from an act of totally different character. (Withdrawal) Mayberry (1973) Qd R 211 - rape will be committed from the time consent was withdrawn if the accused continues with the act (argument was that CK was complete prior to the withdrawal of consent). (Withdrawal) R v Kaitamaki [1984] 1 NZLR 385 - a man is guilty of rape if he continues intercourse after he realises the woman is no longer consenting, even if consent was given initially. (Threat) R v PS Shaw [1995] 2 Qd R 97 - in circumstances in which there was a threat by the appellant to the complainant that if she did not engage in sexual intercourse with him she would be unable to go home and would continue to be subject to sexual misuse by him there was a “threat” under s. 347 of the Code. (Authority) Brewer (1994) 2 NZLR 229 (exercise of authority) - that the alleged offender knew that the victim had been induced to consent by an express or implied threat to make improper use to the detriment of the other person of a power or authority arising out of an occupational or vocational position held by the alleged offender or out of a commercial relationship existing between them. A prospective employee is not at risk of detriment, a current employee is (NB this is NZ legislation, more narrow than Qld). (Misrepresented Purpose) R v Williams [1923] 1 KB 340 - The defendant was a singing coach. He told one of his pupils that he was performing an act to open her air passages to improve her singing. In fact he was having sexual intercourse with her. It was held that her consent was vitiated by fraud as to the nature and quality of the act. (Misrepresented Purpose Old) Mobilio [1991] 1 VR 339 - a radiographer subjected several female patients to vaginal examinations using ultrasound transducers. These examinations had no medical value and were conducted solely for the sexual gratification of the radiographer. He was subsequently charged and convicted of rape. On appeal, the court held that any mistaken belief on the part of the complainant must relate to the nature and character of the act or to the identity of the sexual partner. Therefore, since the patients had consented to the insertion of the transducer into their vaginas, their consent was not vitiated simply because they were mistaken about the reason behind the act. However, it seems certain that the patients would not have consented had they known the real reason for the internal examination (see statutory changes). (Misrepresented Purpose New) R v BAS [2005] QCA 97 – The Appellant in That case was convicted of multiple counts of rape and sexual assault committed on young Women and minors during treatments Represented as ‘alternative therapy’. The Appellant admitted that Many of The so - called ‘treatments’ took place, but claimed he genuinely believed in their medical value; that claim was evidently rejected by the jury. There was no dispute that the complainants and their parents had consented to the treatments; however, there was clear evidence that they would not have done so if they had thought then, as they did later, that the sessions had o genuine therapeutic purpose. The Court of appeal unanimously upheld the appellant’s convictions. The judges appeared to accept without serious question that the scenario would fall within the meaning of the amended s 348(2)(e).

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(Impersonation) Pryor [2001] QCA 341 - consent involved not only an appreciation that sexual intercourse was about to take place, but also an awareness of the identity of the male about to effect that penetration. Therefore, consent can be negated by a mistaken belief induced by accused person that accused person was the person’s sexual partner. (Impersonation) Papadimitropolous (1957) 98 CLR 249 - Where a woman consented to sexual intercourse under the belief, fraudulently induced by the man, that she was married to him, held, that the man was not guilty of rape (see statutory changes). (Medical Evidence) R v Richards [1965] Qd R 354 it was held that “evidence of the physical condition of the complainant is not only admissible, but must be tendered by the Crown.” Therefore as part of its proof of penetration the Crown must give evidence of the condition of the genital organs of the complainant. (Mistake Fact) R v Sax [2006] QCA 397 - the appellant was convicted on one count of rape. The appellant appealed that: ‘The appellant was entitled to have the jury fully instructed in relation to the issue of consent, and to have the jury consider the possibility of a defence under s 24 of the Code. (Penetration) Richardson v The Queen [1978] tas. S.R. 178 - “Carnal knowledge consists of the act of entering the vagina and that act is complete upon entry or penetration taking place to the slightest degree….” (Penetration ) R v Lennon [1997] QCA 278 - it was held that: ‘…no more was needed to establish each of the offences in counts 3 and 4 in the present case than that some part of the appellant's penis passed beyond the labia of the complainant.’

SEXUAL ASSAULT 352 Sexual assaults (1) Any person who— (a) unlawfully and indecently assaults another person; or (b) procures another person, without the person's consent— (i) to commit an act of gross indecency; or (ii) to witness an act of gross indecency by the person or any other person; is guilty of a crime. Maximum penalty—10 years imprisonment. (2) However, the offender is liable to a maximum penalty of 14 years imprisonment for an offence defined in subsection (1)(a) or (1)(b) (i) if the indecent assault or act of gross indecency includes bringing into contact any part of the genitalia or the anus of a person with any part of the mouth of a person. (3) Further, the offender is liable to a maximum penalty of life imprisonment if— (a) immediately before, during, or immediately after, the offence, the offender is, or pretends to be, armed with a dangerous or offensive weapon, or is in company with any other person; or (b) for an offence defined in subsection (1)(a), the indecent assault includes the person who is assaulted penetrating the offender's vagina, vulva or anus to any extent with a thing or a part of the person's body that is not a penis; or (c) for an offence defined in subsection (1)(b)(i), the act of gross indecency includes the person who is procured by the offender penetrating the vagina, vulva or anus of the person who is procured or another person to any extent with a thing or a part of the body of the person who is procured that is not a penis. Notes   

Alternative verdict on a rape charge – see s 578 assault” definition in s 245 applies to s 352(1)(a) – so limbs 1 & 2 assault apply lack of consent must be proved: but does s 245(1) consent or s 348 consent apply to sexual assault? See R v BAS at [51]-[52]: answer? Use 245 version of consent.

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No code definition of “indecent”. question of fact for jury - a sexual connotation is required - judge according to contemporary community standards (Circumstances) R v Dunn [1973] 2 NZLR 481 - that indecency: ‘must always be judged in the light of time, place and circumstances.’ (Connotation) Harkin v R (1989) 38 A Crim R 296 - the requirement for the assault to be indecent also required: ‘…that if there be an indecent assault it is necessary that the assault have a sexual connotation.’ And later in the judgement: ‘… before the assailant can be convicted it must be shown that he intended it to have a sexual connotation, that is to obtain sexual gratification from it.’ (As above) R v Bas [2005] QCA 97 - adopted the definition under Harkin…further stated that the victim’s body part or offenders body part involved, must have an inherent sexual connotation…or further evidence of clear sexual gratification is needed.

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(Narrow interpretation) Bryant [1984] 2 Qd R 545 (later adopted in McBride [2008] QCA 412) – gave narrow/strict definition: “moral turpitude” or “acting in a base or shameful manner”. (Wide Interpretation) Drago (1992) 8 WAR 488 – gave wider/less strict definition: “unbecoming or offensive to common propriety” . (Motive?) McCallum [2013] QCA 254 - Relevance of accused’s motive or purpose in doing the act? Motive is relevant where there may be an innocent explanation for the act that would otherwise be sexual assault. (Motive + general) R v Jones (2011) 209 A Crim R 379 - Indecency, as an element of indecent assault, is to be objectively measured and involves a serious departure from accepted standards of decency. The purpose of an accused is relevant to assessing motive. While intentional touching of a genital area may be unequivocally sexual, it may be explained by motive in the context of a medical professional conducting an examination with consent and within the ambit of accepted medical practice. (Gross) Whitehouse [1955] QWN 76 - meaning of “gross” = “plain, evident, obvious”: (Procure) R v F; ex parte A-G (Qld) [2003] QCA 70 - ‘The word “procure” is a plain English word. It is not a term of art. However its meaning may change depending on the context in which it is used. In particular the degree of proximity between procurement and what is procured may vary depending on the context in which the word is used.’ “procures” – not defined in Code however, previously s 337(4) definition = “knowingly entice or recruit for the purpose of sexual exploitation”.

DRINK SPIKING 316 Stupefying in order to commit indictable offence Any person who, with intent to commit or to facilitate the commission of an indictable offence, or to facilitate the flight of an offender after the commission or attempted commission of an indictable offence, administers, or attempts to administer, any stupefying or overpowering drug or thing to any person, is guilty of a crime, and is liable to imprisonment for life. 316A Unlawful drink spiking (1) A person who administers, or attempts to administer, in drink a substance to another person (the other person) without the other person having knowledge of the substance with intent to cause the other person to be stupefied or overpowered is guilty of a crime and is liable to imprisonment for 5 years. (2) If the substance is alcohol, for section 24 only, the circumstances in which the other person is taken to have knowledge of the alcohol include where the other person would not object to the administration of the alcohol if the other person had actual knowledge of it. (3) The following matters are immaterial— (a) whether the lack of knowledge of the substance is lack of knowledge of the presence at all of the substance or of the particular quantity of the substance; (b) whether the substance is capable of having the effect intended; (c) whether a particular person is intended to be the person to whom the substance is administered or attempted to be administered. (4) A reference to causing the other person to be stupefied or overpowered is— (a) a reference to causing the other person to be stupefied or overpowered in circumstances where the other person is not intending to be stupefied or overpowered at all; or (b) a reference to causing the other person to be further stupefied or overpowered in circumstances where the other person is not intending to be further stupefied or overpowered at all or to the extent intended by the person who administers, or attempts to administer, the substance. (5) This section does not apply to an act lawfully done in the course of the practice of a health professional, the carrying out of a function under an Act or the performance of the responsibilities of a parent or carer. (6) In relation to an attempt to administer a substance, for this section and section 4, attempt includes adding a substance to drink in preparation for the administration of the substance. (7) In this section— adding a substance, to drink, includes, without limiting section 7, the following— (a) cause to be added to drink; (b) substitute drink with other drink containing the substance; (c) take any step to provide drink containing the substance instead of other drink. circumstances, where the other person is not intending to be stupefied or overpowered, includes any circumstance of timing, place, condition, or way of stupefaction or overpowering. dangerous drug see the Drugs Misuse Act 1986, section 4. drink includes water, beverage, or other liquid, intended or prepared for human consumption. LLB106 – Criminal Law (Sexual Offences)

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health professional see the Hospital and Health Boards Act 2011, schedule 2. stupefied or overpowered includes— (a) a state of intoxication caused by alcohol, a drug or another substance; and (b) behavioural change caused by a dangerous drug, whether or not the mind is otherwise affected.

OTHER SEX OFFENCS Non-consensual offences:  Attempt to commit rape: s 350  Assault with intent to commit rape: s 351 Offences where consent is immaterial:  Unlawful sodomy with a person under 18 or intellectually impaired: s 208  Indecent treatment of children under 16: s 210  Unlawful carnal knowledge of children under 16: s 215  Using electronic communication to procure children under 16 to engage in a sexual act: s 218A  Incest: s 222  Bestiality: s 211

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