Lecture Notes: Substantive Criminal Law II - Sexual Offences and Crimes Against the Person

300 practice flashcards covering Rape, Homicide, Bodily Harm, and Offences against Public Administration based on Maltese lecture notes.

According to Article $198(1)$ of the Criminal Code, what is the punishment for non-consensual carnal connection involving vaginal, anal, or oral penetration with a sexual organ?

Imprisonment for a term from $6$ to $12\,years$.

Under Article $198$, what is the punishment for non-consensual vaginal, anal, or oral penetration with any other part of the body not mentioned in sub-article ($1$)?

Imprisonment for a term from $3$ to $9\,years$.

According to the second proviso of Article $198(1)$, when is penetration with any bodily part deemed to be complete?

By its commencement.

What is the punishment prescribed by Article $198(1A)$ for non-consensual vaginal, anal, or oral penetration of a sexual nature with an object?

Imprisonment for a term from $3$ to $12\,years$.

Under Article $198(1A)$, when is penetration with an object deemed to be complete?

By the commencement of the penetration with that object.

In Principles and Practice of Criminal Law, how does Harris contend rape connotes?

Carnal knowledge of a woman, without her consent.

What are the four ways Harris lists through which rape may occur?

$1$.) Force/fear of bodily harm; $2$.) Fraud; $3$.) Impersonation of husband; $4$.) When the victim is asleep or imbecile.

What example does Harris provide for rape committed by fraud?

Submission because of the agent portraying himself to be a doctor about to conduct surgery on the victim.

Historically, in the Maltese legal system, what two fundamental ingredients were involved in the crime of 'rape or carnal knowledge with violence'?

$1$.) The Carnal Knowledge and $2$.) The Use of Violence.

What international framework influenced the protection of minors in Act XXXI of $2007$?

Council Framework Decision $2004/68/JHA$ and the Optional Protocol to the UN Convention on the Rights of the Child.

Which specific articles were introduced by Act XXXI of $2007$ to replace the former Article $208A$?

Articles $204A$, $204B$, and $204C$.

Act IV of $2014$ implemented which European Union Directive?

Directive $2011/93/EU$.

What was the key innovation introduced by Article $208C$ in Act IV of $2014$?

The criminalisation of aiding, abetting, and instigating the commission of offences against minors.

How did Act XIII of $2018$ change the legal framework for domestic violence?

It repealed the Domestic Violence Act (Chapter $481$) and introduced the Gender-Based Violence and Domestic Violence Act (Chapter $581$).

What was the previous position for the requirement of rape prior to the $2018$ reforms?

It required carnal knowledge obtained through violence and was limited to vaginal or anal penetration with the genital organ.

Following Act XIII of $2018$, what replaced 'violence' as the central element of the offence of rape?

Lack of consent.

What new offence was introduced by Act XIII of $2018$ under Article $251A$?

Sexual harassment.

What is the name of the Council of Europe Convention implemented by Act XIII of $2018$?

The Istanbul Convention.

What is the role of the monitoring group GREVIO in relation to the Istanbul Convention?

It evaluates national implementation and publishes reports on good practices regarding violence against women.

What specific refinement did Act LXIV of $2021$ introduce to Article $198$?

It introduced Article $198(1A)$ specifically criminalising non-consensual penetration with an object regardless of its intended purpose.

In the term 'Whosoever' in Article $198(1)$, what is indicated regarding the gender of participants?

The offence can be committed by any person against any person, regardless of gender.

What does the phrase 'Shall engage' in Article $198(1)$ relate to in legal terms?

It implies a voluntary act relating to both the actus reus and the mens rea.

How did Maltese courts traditionally interpret 'carnal knowledge'?

Genital penetration by the male organ.

Under Article $206$ of the Criminal Code, at what point is an offence requiring carnal connection considered consummated?

Upon the commencement of the bodily connection.

Is the proof of rupture or injury to the hymen necessary to complete the crime of rape in Malta?

No, it is unnecessary.

According to Case Law (Il-Pulizija v Douglas James sive Jack Sheddon, $1959$), did oral penetration amount to carnal connection for rape under the old law?

No, it was considered a separate offence such as violent indecent assault.

In the case Ir-Repubblika ta’ Malta v. Omissis ($2017$), what degree of penetration was held to satisfy the legal requirement for rape?

The slightest penetration, referred to as the 'commencement of penetration'.

According to the first proviso to Article $198(1)$, what body parts are specifically mentioned as being capable of penetration?

Fingers and hands.

In the context of Article $198(1A)$, what determines whether penetration with an object is criminal?

The sexual nature or intent behind the act.

Under the current framework, what happens if a sexual encounter starts consensually but consent is later withdrawn?

Any continuation of the act after withdrawal constitutes rape.

According to Article $198(3)$, when are acts under Article $198(1)$ and ($1A$) considered non-consensual?

Unless consent is given by the free will of the person involved.

What are the three cumulative requirements for valid consent under Maltese law?

$1$.) Given voluntarily; $2$.) The physical, emotional, and mental state of the person; $3$.) Other relevant circumstances.

How does Maltese law differ from English law regarding the perpetrator's belief in consent?

Maltese law focuses on whether valid consent actually existed, whereas English law considers the reasonable belief of the accused.

In the case Il-Pulizija vs David Xuereb ($2022$), what did the court find regarding emotional and mental abuse?

It amounted to physiological violence, which also constitutes violence in legal terms.

Under Article $201(a)$, at what age is carnal knowledge irrebuttably presumed to be non-consensual?

Under $12\,years$ of age.

Under Article $201(b)$, what conditions create a rebuttable presumption of non-consent?

Physical or mental infirmity, or other cause independent of the offender, or fraudulent device.

If a victim is between $12$ and $18\,years$ of age and the offender is an ascendant, is violence presumed?

No, real violence must be proven (Article $202(b)$).

What is 'constructive violence'?

A situation where no physical violence occurs but the agent creates a situation where the victim feels constrained to perform an act (e.g., threats over time).

According to R v Linekar, when does fraud vitiate consent?

Only when it relates to the nature of the act or the identity of the person performing it.

In R v. Flattery ($1877$), how was consent vitiated?

By a fraudulent device where the accused pretended to be a doctor performing surgery.

Does a 'drunken consent' negate rape if the person was still capable of making a choice at the time?

No, if the person had capacity to choose, it is still consent.

According to the ECHR case Mario Charles v Bulgaria ($2003$), states must criminalise non-consensual sexual acts even if what is missing?

Physical resistance from the victim.

In English law under the Sexual Offences Act $2003$, what does Section $1(1)(a)$ specify regarding the physical requirement of the perpetrator in rape?

The person must penetrate using his penis.

What is the 'radical approach' to marital rape adopted in the UK case R. v. R. ($1991$)?

The approach that all sexual relationships without consent are unlawful, including in marriage.

In the antique case L’Avvocato della Corona vs. N.N. ($1854$), why was the husband found guilty of rape despite the marriage?

Because the carnal connection was violent and unnatural ('contra natura').

Under Article $41$ of the Criminal Code, when does attempted rape occur?

When acts of violence are committed, execution has clearly begun, and acts are directed toward carnal connection.

In the landmark judgment The Police vs. Antonio Grech ($1955$), what was established regarding attempted rape?

The commencement of execution can occur prior to the commencement of penetration.

What is used to distinguish attempted rape from violent indecent assault?

The specific mens rea (intent) of the offender to achieve carnal connection.

According to Article $202$, name three general categories of aggravating circumstances for sexual offences.

Abuse of authority/position, increased use of force/assistance, and vulnerability of the victim.

Is the prosecution of rape generally ex officio or requiring a complaint?

It requires the complaint of the private party (querela da parte).

Under what conditions can the police prosecute rape ex officio?

When it is accompanied with public violence or any other offence affecting public order.

What is the residual offence for non-consensual acts of a sexual nature that do not constitute rape?

Article $207$ (formerly violent indecent assault).

Under Article $198(4)$, what two types of damages can a court order an offender to pay to the victim?

$1$.) Physical (material) damages and $2$.) Moral damages.

What phenomenon explained by Professor James Hopper explains why victims might not physically resist rape?

Paralysis or 'tonic immobility'.

What is the primary conduct criminalised by Article $199$ of the Criminal Code?

Abduction.

What is the essential element of the actus reus of abduction?

The victim must be taken or transported from one place to another (movement).

Is abduction a result crime or a formal (conduct) crime?

It is a formal crime (conduct crime).

Under Article $199(1)$, what two specific intents distinguish abduction from illegal arrest?

Intent to abuse or to marry the victim.

Does Maltese law recognize presumed violence in cases of abduction under Article $199(1)$?

No, real violence must be proven.

Abduction by fraud or seduction (Article $199(2)$) applies only to which category of victims?

Persons under the age of $18\,years$.

What is the legal definition of 'fraud' in the context of abduction?

Deceptive practices, tricks, or machinations used to gain control over a minor.

According to Carrara, what is the decisive factor in 'seduction' for abduction?

Whether the offender simulated good intentions or acted deceptively to induce the minor to leave.

If a minor would have gone to a place independently of the offender's persuasion, is the crime of abduction by seduction established?

No, there must be a causal link between the seduction and the decision to go.

What was the '$24-hour$ return loophole' historically mentioned by Jameson?

An extenuation where the punishment was reduced to $1$ to $3\,months$ if the victim was returned within $24\,hours$ without abuse.

How did Article $200(2)$ previously allow abductors to avoid prosecution?

By marrying the victim (repealed).

What is the specific punishment for defilement of a minor under $16\,years$ (Article $203(1)$)?

Imprisonment for a term from $4$ to $8\,years$.

What are the three elements of the offence of defilement of minors as held in Pulizija vs Alessandro Debono?

$1$.) Lewd acts that defile; $2$.) Intent for sexual gratification; $3$.) Effective defilement of the minor.

Are minors under $9\,years$ of age criminally responsible for defilement?

No, they are exempt from criminal responsibility under Articles $35$ to $37$.

Under the current Article $203$, what is the age threshold for a victim of defilement?

Those who have not completed the age of $16\,years$.

Does defilement under Article $203$ require physical contact between the offender and the minor?

No, lewd acts can occur in the presence of the minor.

According to Manzini, what constitutes 'lewd acts' (atti di libidine)?

Any act apt to indulge the sexual instinct or excite libidinous desires, even without full satisfaction.

Can consensual sexual intercourse with a minor constitute defilement under Article $203$?

Yes, the law presumes minors under $16$ cannot validly consent.

In the case Il-Pulizija vs. Spiru Silvio ($1960$), what act was found to potentially constitute defilement?

A 'bacio violento' (violent kiss).

Does the law require plural acts to satisfy the charge of 'lewd acts' in defilement?

No, a single act is sufficient.

Is specific intent to 'defile' required for a conviction under Article $203$?

No, intent is generic; defilement is presumed to be the natural consequence of lewd acts.

What does the term 'defiles' imply regarding the minor's state?

That the minor's innocence is lost, impaired, or further compromised.

What is the theory of 'corrupta non corrumpitur' in defilement cases?

The idea that a person who is already totally corrupt cannot be further corrupted (largely rejected by modern Maltese law).

According to Il-Pulizija vs. Carmelo Grech ($1960$), what right does a previously defiled minor have?

The right not to be defiled further.

Under Article $203$, what is the aggravated penalty if the victim is under $12\,years$ of age?

Imprisonment for a term of $6$ to $12\,years$.

What constitutes 'deceit' in the context of aggravated defilement (Impallomeni)?

Devices or contrivances, like a false promise of marriage, used to induce the minor.

Article $203(1A)$ (Peer Sexual Activity) allows for a reduction in punishment if which three conditions are met?

$1$.) Consensual activity; $2$.) Close age and development; $3$.) No physical/emotional/psychological abuse.

What is the time limit for making a complaint for defilement when no aggravating circumstances are present?

$1\,year$ from the date of the act.

Which article punishes a person who instigates or facilitates the defilement of a minor without personally performing lewd acts?

Article $203A$.

What is 'Lenocinium' (Article $204$)?

The act of inducing or alluring a minor into prostitution or instigating their defilement to gratify the lust of another.

What is the essential formal element (mens rea) of Article $204$ that distinguishes it from Article $203A$?

The specific intent to gratify the lust of another person, not the offender's own.

Under Article $204$, is a minor's prior engagement in prostitution a valid defence?

No, the moral qualities of the passive subject are irrelevant.

What is the penalty range for Article $204B$ (Exploitation of Minors in Prostitution)?

Imprisonment for a term from $5$ to $10\,years$.

In Pulizija vs Raisa Mangion ($2014$), what was noted as a minimum requirement for 'sexual activities'?

The use of the sexual organs of those involved.

What is 'grooming' via information technology called under Article $208AA$?

Solicitation of a person under age.

Under Article $208A(7)$, what is the definition of 'indecent material' involving minors?

It includes photographs, images, realistic depictions, and simulations of a minor for sexual purposes.

According to Il-Pulizija vs Alex Vella Gera, when is material considered 'pornographic'?

When its objective and intentional effect is to provoke lust or sexual excitement.

What is the 'COPINE taxonomy' used by Maltese courts for?

To classify and assess the gravity of child pornography images.

What are the four core principles of the UN Convention on the Rights of the Child ($1989$)?

Non-discrimination, best interests of the child, right to survival/development, and the views of the child.

What is the 'Lanzarote Convention' ($2007$) focused on?

The Protection of Children Against Sexual Exploitation and Sexual Abuse.

According to functionalist theory (Kingsley Davis), why does prostitution exist?

Because it serves several functions, such as lowering divorce by providing an outlet for men.

What does the 'symbolic interactionism theory' (Weitzer) focus on regarding prostitution?

Everyday understandings of prostitutes and customers, such as providing companionship alongside sex.

What is the 'rational approach theory' regarding individuals choosing prostitution?

Prostitutes focus on the trade as an easy way to provide money and a better way of living in a short period.

Does Chapter $9$ (the Criminal Code) criminalise the act of prostitution itself?

No, it criminalises activities associated with it (inducing, exploiting, etc.).

What is 'enforced prostitution' categorized as under Article $54C(1)(g)$?

A crime against humanity.

Under Article $205$, what is the punishment for compelling an adult into prostitution through violence?

Imprisonment from $3$ to $7\,years$. (Aggravated to $4$ to $9\,years$ for abuse of authority).