#9401 - Sexual Violence - Principles of Criminal Law

Notes The Principles of Criminal Law SEXUAL VIOLENCE 28 | Exam The Principles of Criminal Law Notes Sexual Assault * Assault is an element in sexual assault Criminal Code 1899: s352 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. SEMESTER ONE | 29 Notes The Principles of Criminal Law Meaning of indecent/what renders an assault to be indecent: Purves v Inglis (1915) * The word 'indecent' has no definite legal meaning and therefore it must be referred to its ordinary meaning Anything that is unbecoming or offensive to common proprietary (dictionary definition) SS? This definition is very broad and captures a lot of activity within it Bench Book The 2008 case of McBride indicates that the definition of Purves v Inglis is too wide and must be further refined to have elements of moral palpitude or interfering with a persons sexual integrity. R v Court [1987] * Word indecent means a contravention of sexual decency relating to modesty and privacy More pointed and narrow definition R v Harkin (1989) * Indecent means contrary to the moral standards of regular and ordinary people Intentional touching of a girls breast is a sexual assault Therefore, there must be an intention to do the act for the purpose of sexual gratification Meaning of gross: R v Whitehouse [1955] * * 30 | Phillip J: word should be given the Oxford meaning of "plain, evident or obvious." Sexual assault was initially referred to as 'indecent assault.' Changes to the Code have seen this changed as well as increase penalty times Exam The Principles of Criminal Law Notes Rape Criminal Code 1899: s347 Definitions consent see section 348. penetrate does not include penetrate for a proper medical, hygienic or law enforcement purpose only. s348 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. s349 Rape (1) Any person who rapes another person is guilty of a crime. Maximum penalty---life imprisonment. (2) A person rapes another person if--- (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. (3) For this section, a child under the age of 12 years is incapable of giving consent. * There is no gender stipulated within the Code meaning that a woman can rape a man, much like a man can rape a woman SEMESTER ONE | 31