LLB 130 Study Guide - Final Guide: Indictable Offence, 18 Months, Assault Occasioning Actual Bodily Harm
Scaffold for Sexual Offences
What is the AR?
1. The act being sexual intercourse
- Defined in s 61H(1)
- Icludes cotiuatio: s 61H1d
2. Circustaces of ithout coset s 61HA(2), (4)-(8)
- Meaning of consent: s 61HA(2) – freely ad olutarily
- Physical resistance?? S 61HA(7)
- Are there any circumstances that automatically or may negate consent? Ss
61HA(4)(5) and s 61HA(6) respectively
Mens rea for sexual assault
1. Intent to have sexual assault
2. Koledge that the coplaiat does ot coset: s 61HA(3)
- includes actual knowledge (s 61HA(3)(a)) and recklessness (s 61HA(3)(b))
- ca the cro proe that the accused ke the coplaiat ast cosetig?
- Is there an honest mistake of fact?
- What are the states that aout to koledge? s 61HA3
- See Tolmie
Sexual assault
Conduct/act
Circumstance
Result/consequence
AR
Sexual intercourse: s
61H
Without consent: s
61HA(2), (4)-(8)
MR
Intent
koledge as
deemed in s
61HA(3)
Are there any circumstances of aggravation?
- S 61J includes the offence and the circumstances of aggravation
- The Crown must prove the elements for sexual assault and a circumstance of
aggravation
- S 61H contains definitions
- See RJS
If YES to aggravated assault, was it in company?
- Crimes Amendment (Aggravated Sexual Assault) Act 2011
- Crown must prove the elements of sexual assault, that the accused was in
company of another person(s) (s 61JA(1)(b)), and one of the circumstances is
aggravation
If not satisfied with a more serious offence charged (i.e. sexual assault), but there is
evidence of a lesser offence, look to: indecent assault, aggravated indecent assault, act of
indecency and aggravated act of indecency: CB 709
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CRIMES ACT 1900
61H Defiitio of sexual itercourse ad other ters
(1) For the purposes of this Division,
"sexual intercourse" means:
(a) sexual connection occasioned by the penetration to any extent of
the genitalia (including a surgically constructed vagina) of a
female person or the anus of any person by:
(i) any part of the body of another person, or
(ii) any object manipulated by another person,except where
the penetration is carried out for proper medical purposes,
or
(b) sexual connection occasioned by the introduction of any part of the
penis of a person into the mouth of another person, or
(c) cunnilingus, or
(d) the continuation of sexual intercourse as defined in paragraph (a),
(b) or (c)
(1A) For the purposes of this Division, a person has a "cognitive impairment" if
the person has:
(a) an intellectual disability, or
(b) a developmental disorder (including an autistic spectrum disorder), or
(c) a neurological disorder, or
(d) dementia, or
(e) a severe mental illness, or
(f) a brain injury,
that results in the person requiring supervision or social habilitation in connection
with daily life activities.
(2) For the purposes of this Division, a person is under the authority of
another person if the person is in the care, or under the supervision or
authority, of the other person.
(3) For the purposes of this Act, a person who incites another person to an act of
indecency, as referred to in section 61N or 61O, is taken to commit an
offence on the other person.
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61HA Consent in relation to sexual assault offences
(1) Offences to which section applies This section applies for the purposes of the
offences, or attempts to commit the offences, under sections 61I, 61J and 61JA.
(2) Meaning of consent
A person "consents" to sexual intercourse if the person freely and voluntarily agrees
to the sexual intercourse
(3) Knowledge about consent
A person who has sexual intercourse with another person without the consent of the
other person knows that the other person does not consent to the sexual
intercourse if:
(a) the person knows that the other person does not consent to the
sexual intercourse, or
(b) the person is reckless as to whether the other person consents to
the sexual intercourse, or
(c) the person has no reasonable grounds for believing that the
other person consents to the sexual intercourse
For the purpose of making any such finding, the trier of fact must have regard to all the
circumstances of the case:
(d) including any steps taken by the person to ascertain whether the other person
consents to the sexual intercourse, but
(e) not including any self-induced intoxication of the person.
(4) Negation of consent
A person does not consent to sexual intercourse:
(a) if the person does not have the capacity to consent to the sexual
intercourse, including because of age or cognitive incapacity, or
(b) if the person does not have the opportunity to consent to the sexual
intercourse because the person is unconscious or asleep, or
(c) if the person consents to the sexual intercourse because of threats
of force or terror (whether the threats are against, or the terror is
instilled in, that person or any other person), or
(d) if the person consents to the sexual intercourse because
the person is unlawfully detained.
(5) A person who consents to sexual intercourse with another person:
(a) under a mistaken belief as to the identity of the other person, or
(b) under a mistaken belief that the other person is married to
the person, or
(c) under a mistaken belief that the sexual intercourse is for health or
hygienic purposes (or under any other mistaken belief about the
nature of the act induced by fraudulent means),
does not consent to the sexual intercourse.
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Document Summary
What is the ar: the act being sexual intercourse. I(cid:374)cludes (cid:862)co(cid:374)ti(cid:374)uatio(cid:374)(cid:863): s 61h(cid:894)1(cid:895)(cid:894)d(cid:895: circu(cid:373)sta(cid:374)ces of (cid:862)(cid:449)ithout co(cid:374)se(cid:374)t(cid:863) s 61ha(2), (4)-(8) Meaning of consent: s 61ha(2) (cid:862)freely a(cid:374)d (cid:448)olu(cid:374)tarily(cid:863) What are the states that a(cid:373)ou(cid:374)t to (cid:862)k(cid:374)o(cid:449)ledge(cid:863)? s 61ha(cid:894)3(cid:895) S 61j includes the offence and the circumstances of aggravation. The crown must prove the elements for sexual assault and a circumstance of aggravation. Crimes amendment (aggravated sexual assault) act 2011. Crown must prove the elements of sexual assault, that the accused was in company of another person(s) (s 61ja(1)(b)), and one of the circumstances is aggravation. If not satisfied with a more serious offence charged (i. e. sexual assault), but there is evidence of a lesser offence, look to: indecent assault, aggravated indecent assault, act of indecency and aggravated act of indecency: cb 709. 61h defi(cid:374)itio(cid:374) of (cid:862)sexual i(cid:374)tercourse(cid:863) a(cid:374)d other ter(cid:373)s (1) for the purposes of this division,
