Class Notes (839,574)
Australia (1,845)
Law (441)
JSB171 (400)
All (349)
Lecture

Week 7 - Sexual Assault & Rape

8 Pages
67 Views

Department
Law
Course Code
JSB171
Professor
All

This preview shows pages 1,2 and half of page 3. Sign up to view the full 8 pages of the document.
Description
Rape  s 349 CC Rape (1) Any person who rapes another person is guilty of a crime. Maximum penalty = life imprisonment. 2 (2) A person rapes another person if - 3 (a) the person has carnal knowledge with or of the other person without the other person’s consent; or (b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or (c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent. Element 1 = Carnal knowledge  Includes sodomy: s 1 CC (vagina or anus)  Carnal knowledge is complete on penetration to any extent: s 6 CC  However, what happens after penetration is still part of rape: Mayberry (consent can be withdrawn) Mayberry Hanger J It is possible for a female to consent to sex in the first instance and as the penetration continues they may withdraw their consent, if they do withdraw there consent but the male continues to have sex it is possible that a rape could be committed. NOTE: NO PENETRATION, MAY CHARGE WITH ATTEMPTED RAPE WHERE THERE IS INTENT, or indecent assault – R v Ball Element 2 = With or of another person Element 3 = Without consent – Onus on Crown to prove lack of consent, Q of Fact New amendment to rape:  s 349 (3) CC – For rape, a child under the age of 12 is incapable of consenting. Consent Definition from Case Law Holman per Jackson CJ A woman’s consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threats, fear or fraud), it is not rape. Francis A man committed rape if by reason of sleep or drunken stupor, the woman was incapable of deciding whether to consent or not. Consent Definition Under the Code  s 347 CC - Consent defined in s 348 CC  s 348(1) CC - Consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent  s 348(2) CC – Consent is not free and voluntary if given:  by force;  by threat or intimidation (PS Shaw); PS Shaw: brother-in-law threatened girl that she couldn’t go home unless she was the subject of his sexual abuse; McPherson J, Q of consent is not whether a woman of average fortitude, maturity, and determination would have ignored or registered a similar threat, but is whether the consent of the particular victim was induced by the threat made to her by the accused.  by fear of bodily harm (black eye, bloodied nose: (Lergesner v Caroll);  by exercise of authority (Brewer); Brewer; NZ case: Man was employing a 16year old girl for a job. Asked her to take off her top. Then asked her to give him a blow job in return for the job.  by false and fraudulent representations about the nature or purpose of the act: Papadimitropoulos she thought that she was married to the guy and it turns out she wasn’t, High Court said that there where 2 types of fraud that would waive consent. 1. The first was fraud as to the true character of the sexual act, ie you need to know what is being done. 2. The second is fraud as to who is performing the sexual act. In the Paradimitropoulos case Mrs Papadimitropoulos knew both that she was having sex and who she was having sex with. Mobilio; Radiographer was using an ultra sound probe on patient, they did consent to the use of the ultra sound for medical purposes but he was actually using the probe for his own sexual gratification. There was not found to be any rape in this case. Note this is a Victorian case and the legislation has since been amended. If this scenario was to occur in Qld today these acts would amount to rape because the patients must know and consent to the purpose of the act. Williams; (1923) A singing teacher raped a girl because it was meant to improve her breathing. Purpose of the act would not have been consented to  by a mistaken belief induced by the accused that the accused was the person’s sexual partner: Kake A lady was sleeping and she had a nocturnal visitor. The visitor knelt next to her bed and began to fondle her. She was expecting her husband to be released from prison at any time and she said ‘Alan”. The visitor nodded and then took of his shirt climbed into bed and they had intercourse. The appeal against the conviction was allowed because the visitor did not intentionally pass himself off as being another person. This would not be the case in Qld because intention is not a requirement. NOTE: NO PENETRATION, MAY CHARGE WITH ATTEMPTED RAPE WHERE THERE IS INTENT. Defenses to Rape  At common law and for attempted rape under the Code, the mistaken belief must be honest. If a person honestly believes the person consented they will not be guilty of rape. Belief only has to be honest, it does not have to be reasonable. DPP v Morgan; A husband invited 3 of his male friends to have intercourse with his wife. He said that she was ‘kinky’ and that any resistance on her part would be a mere pre-tense. All 3 men had intercourse with her despite her protests and struggles. The men where found to have an honest belief of consent and where not found to be guilty of rape.  For rape under the Code, the mistaken belief must be honest and reasonable: s 24 CC; A-G’s Reference (No 1 of 1977) Sexual Assault (Alternative verdict to Rape) Good example: fondling breasts: R v Bas  s 352 CC 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 is 10 years imprisonment. Aggravating:  (2) However, the offender is liable to a maximum penalty of 14 years imprisonment for an offence defined in ss (1)(a) or (1)(b)(i) if the indecent assault or act or 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 ss (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 ss (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. Element 1: Was the act Indecent  Not defined in Code Purvis v Inglis (wide def) Unbecoming or offensive to common propriety = prevailing community standards: Bryant (narrow view) Moral turpitude or acting in a base or shameful manner: McPherson J, Criticised Purvis, not the function of s227 to punish a mere lack of manners or good taste just because the jury found the actions to be contrary to common propriety.. Facts: jewellery box with wallaby testicles inside, pass to the victim. Drago Little boy had his pajamas lifted and the offender drew around his penis with a biro. Criticized Bryant and said that the definition used for s 227 should be wide. Drago restricted to the offence in question. Sub element: Gross Not defined in Code To be given its plain, evident, obvious and ordinary meaning: Whitehouse Gross = total, flagrant, vulgar, large Sub element: Procure  Definition has been removed from Code  Previously procure = means knowingly entice or recruit for the purposes of sexual exploitation: s 337(4) CC Sub element: Genitalia, vagina, vulva and penis  s 1 CC  Includes surgically constructed, whether provided for a male or female Sub element: Penetrate  Does not include penetrate for a proper medical, hygiene or law enforcement purpose only: s 347 CC Consent  See rape Sexual assault is an alternative verdict to rape. S578 CC Rape is an alternative to incest: s 578 CC Defenses to Rape  At common law and for attempted rape under the Code, the mistaken belief must be honest. If a person honestly believes the person consented they will not be guilty of rape. Belief only h
More Less
Unlock Document

Only pages 1,2 and half of page 3 are available for preview. Some parts have been intentionally blurred.

Unlock Document
You're Reading a Preview

Unlock to view full version

Unlock Document

Log In


OR

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


OR

By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.


Submit