1. Sexual Violation Flashcards
What is sexual violation?
it is non-consensual sexual connection with another person.
What is the difference between rape and unlawful sexual connection?
Rape – is a specific form of sexual violation that involves the non-consensual penetration of the complainant’s genitalia by the offender’s penis.
Unlawful sexual connection – has a wider meaning and includes any form of non-consensual penetration or oral connection with a person’s genitalia or anus.
What must be proved for sexual violation?
the Crown must prove beyond reasonable doubt that:
•There was an intentional act by the offender involving sexual connection with the complainant, and
•The complainant did not consent to the sexual act, and
•The offender did not believe the complainant was consenting, or
•If the offender did believe the complainant was consenting, the grounds for such a belief were not reasonable.
What is the legislation for s128 - sexual violation?
- Sexual violation is the act of a person who –
a. Rapes another person; or
b. Has unlawful sexual connection with another person. - Person A rapes person B is person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis, -
a. Without person B’s consent to the connection; and
b. Without believing on reasonable grounds that person B consents to the connection. - Person A has unlawful sexual connection with person B if person A has sexual connection with person B –
a. Without person B’s consent to the connection; and
b. Without believing in reasonable grounds that person B consents to the connection.
What are the elements of rape? What section?
s128(1)(a) - a person - rapes -another person Person A rapes Person B if Person A has sexual connection with Person B, effected by the penetration of person B's genitalia by person A's penis, without Person B’s consent to the connection and without believing on reasonable grounds that person B consents to the connection
What are the element of unlawful sexual connection? What section?
s128(1)(b) - a person - has unlawful sexual connection - with another person Person A has unlawful sexual connection with person B if Person A has sexual connection with Person B without Person B’s consent to the connection and without believing on reasonable grounds that Person B consents to the connection
what does s128B say about sentencing?
a person convicted of sexual violation must be sentenced to imprisonment unless the court thinks that person shouldn’t be sentenced to imprisonment - based on the particular circumstances of the person and the offence.
How is sexual connection defined? What section?
S2, CA61
- Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of –
a. A part of the body of another person; or
b. An object held or manipulated by another person; or - Connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or
- The continuation of connection of a kind described in paragraph (a) or (b).
How can penetration be proved?
- The complainant’s evidence
- Medical examination, including physical injuries and DNA
- Defendants admissions
What definition does case law give about genitalia?
the genitalia comprises the reproduction organs, interior and exterior…they include the vulva and the labia, both interior and exterior, at the opening of the vagina.
(R v Koroheke)
What is the definition of a penis?
includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis.
what does the law say regarding age for sex? What section?
s127
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
What must be proved for establishing reasonable grounds of consent?
- Absence of consent - The complainant did not consent to the sexual act (subjective test)
- Belief in consent - The offender did not believe the complaint was consenting (subjective test)
- Reasonable grounds for belief in consent - If he did believe she was consenting, the grounds for such a belief were not reasonable (objective test)
What is the case law around consent?
Consent must be “full, voluntary, free and informed…freely and voluntarily given by a person in a position to form a rational judgement”
(R v Cox)
what is the case law around the objective test?
Under the objective test the Crown must prove that no reasonable person in the accused’s shows could have thought that the complainant was consenting.
(R v Gutuama)