1. Sexual Violation Flashcards

1
Q

What is sexual violation?

A

it is non-consensual sexual connection with another person.

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2
Q

What is the difference between rape and unlawful sexual connection?

A

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.

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3
Q

What must be proved for sexual violation?

A

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.

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4
Q

What is the legislation for s128 - sexual violation?

A
  1. Sexual violation is the act of a person who –
    a. Rapes another person; or
    b. Has unlawful sexual connection with another person.
  2. 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.
  3. 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.
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5
Q

What are the elements of rape? What section?

A
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
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6
Q

What are the element of unlawful sexual connection? What section?

A
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
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7
Q

what does s128B say about sentencing?

A

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.

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8
Q

How is sexual connection defined? What section?

A

S2, CA61

  1. 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
  2. Connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or
  3. The continuation of connection of a kind described in paragraph (a) or (b).
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9
Q

How can penetration be proved?

A
  • The complainant’s evidence
  • Medical examination, including physical injuries and DNA
  • Defendants admissions
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10
Q

What definition does case law give about genitalia?

A

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)

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11
Q

What is the definition of a penis?

A

includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis.

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12
Q

what does the law say regarding age for sex? What section?

A

s127

There is no presumption of law that a person is incapable of sexual connection because of his or her age.

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13
Q

What must be proved for establishing reasonable grounds of consent?

A
  • 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)
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14
Q

What is the case law around consent?

A

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)

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15
Q

what is the case law around the objective test?

A

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)

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16
Q

What are the 7 things that do not amount to consent? s128A

A
  • lack of protest or resistance
  • force, threat, or fear of force
  • asleep or unconscious
  • affected by alcohol or drugs
  • intellectual, mental or physical impairment
  • mistake as to identity
  • mistake as to nature and quality of the act
17
Q

what is the case law regarding consent based on force, threat, or fear of force?

A

It is important to distinguish between consent that is freely given and submission by a woman as to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.
(R v Koroheke)

18
Q

What are the differences in definitions of attempted sexual violation and assault with intent to commit sexual violation?

A
  • Attempted sexual violation – this does not necessarily involve an assault.
  • Assault with intent to commit sexual violation – may not be sufficiently proximate to the full offence to constitute an attempt.
19
Q

What is the legislation for s129 - attempted sexual violation and assault with intent to commit sexual violation?

A
  1. Every one who attempts to commit sexual violation is liable to imprisonment for a term not exceeding 10 years.
  2. Every one who assaults another person with intent to commit sexual violation of the other person is liable to imprisonment for a term not exceeding 10 years.
20
Q

what does s72(3) say about what constitutes an attempt?

A

An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

21
Q

what does s72(2) say about the question of law?

A
  1. The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
22
Q

From what circumstantial evidence can intent be inferred?

A

offenders actions and words before, during and after the event, the surrounding circumstances, the nature of the act itself.

23
Q

What must the Crown prove regarding attempted sexual violation?

A
  • Intended to have sexual connection with the complainant, and
  • The complainant did not consent to the intended sexual connection; and
  • The defendant did not believe on reasonable ground that the complainant was consenting
24
Q

What is the case law held about attempts?

A

An attempt includes an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
(R v Harpur)

25
Q

What is the case law about sufficiently proximate?

A

The Court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops…the defendant’s conduct [may] be considered in in its entirety. Considering how much remains to be done…is always relevant, though not determinative.
(R v Harpur)

26
Q

what are two likely intents from assaulting someone with intent to commit sexual violation?

A
  • In the hope that the complainant will then change their mind and consent to the act (liable for assault or indecent assault)
  • Intending to commit rape or sexual connection regardless of whether the complainant changes their mind (liable for attempted sexual violation or assault with intent to commit sexual violation).
27
Q

What is consent?

A

A persons conscious and voluntary agreement to something desired or proposed by another

28
Q

What is the definition of genitalia?

A

genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia.

29
Q

What are the elements of s129(2)?

A
  • Everyone
  • Assaults another person
  • With intent to commit sexual violation
  • Of the other person
30
Q

What is the definition of assault?

A

Assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable ground that he has, present ability to effect his purpose.