128 - Sexual Violation Flashcards
Sexual Violation defined as;
Act of a person who —
(1)(a) Rapes another person
OR
(1)(b) Has unlawful sexual connection with another person
What is the Act, Section and Elements for Sexual Violation by Rape ?
CA1961 Section 128(1)(a)
Person
Rapes
Another person
Rape defined …
Penetration of persons genitalia by one’s penis
- without consent
- without believing on reasonable grounds there was consent
Has unlawful sexual connection defined:
Penetration of one’s genitalia or anus by
- another’s person body part
- an object held or manipulated by another
Connection between one’s mouth or tongue to another persons genitalia or anus
What must the Crown prove for 128(1)(a) and 128(1)(b) ?
- Complainant did not consent
- Offender did not believe the complainant consented
- If the Offender believe there was consent, grounds for belief were unreasonable
Definition of Penetration ?
Affected by the slightest degree
What proof is needed for Penetration ?
Statement
Admission
Medical exam
Definition of Genitalia ?
S2 CA1961
Surgically constructed or reconstructed organ analogous to the natural occurring male and female genitalia
What was held in R v Koroheke ?
Reproduction organs internal/external including the vulva and labia both internal/external and at the opening of the vagina
Consent defined as
A persons conscious and voluntary agreement to something desired or purposed by another
Case law in relations to consent ?
R v Cox : Full Voluntary Free and Informed. Freely and Voluntary given by a person to form rational judgment
R v Koroheke : Consent freely given, rather than submission to something unwanted or avoidable
R v Gutuama : No reasonable person would think there was consent
128A …
Allowing sexual activity does not amount to consent in some circumstances
- Physical resistance or Protest
- Force applied, Threat, Fear
- Asleep or Unconscious
- Alcohol or drug that they cannot consent or refuse
- Intellectual, mental or physical condition or impairment of such a nature they cannot consent or refuse
- Mistaken identification
- Mistaken about its nature and quality
What is outlined in 128(4) ?
Spouse who sexual violates their spouse has no legal defence due to the fact that the couple are legally married
Section 128B …
- Everyone who commits sexual violation is liable to imprisonment for a term not exceeding 20 years
- Must be sentenced to imprisonment UNLESS court thinks
- MATTERS are
Particular circumstances of the person convicted AND
Particular circumstances of the offence including the neither of the conduct constituting it
The seriousness of an offence depends on the facts of the particular case.
Section 127
Age is not a defence
There is no presumption of law that a person is incapable of sexual connection because of his or her age
Subjective and Objective Test ?
Subjective Test - Did the complainant consent ?
Subjective Test - Did the offender believe the complainant was consenting ?
Objective Test - If he did believe she was consenting, the grounds of such a belief were not reasonable ?
What was held in R v Herbert ?
True consent may be given reluctantly.
Case Law relating to Objective Test ?
R v Gutuama
No reasonable person in the accused shoes could have thought that the complaint was consenting.
Subsection 2 of Section 128A ?
(a) FORCE: intended or sufficient to cause bodily harm
(b) THREAT: Must be a threat to use force against the Victim sufficient to negate the claim of genuine consent
(c) FEAR: Victim must be afraid that the force will be used against them even if the force was not actually used or threatened
Regarding s128A(6) who makes the mistake ?
The mistake is one made by the person submitting to the sexual connection, not a mistake by the defendant
S128A(7) Mistake as to nature and quality of act
Consent is also nullified when the complainant was unaware of the true nature of the physical act to which they were agreeing
What is the difference between Rape and Unlawful sexual connection ?
Rape involves the penetration of the complainants genitalia by the offenders penis where unlawful sexual connection captures all forms of non consensual sexual connections, other that those that amount to rape.
