128 - Sexual Violation

Question 1

Sexual Violation defined as;

Answer 1

Act of a person who —

(1)(a) Rapes another person
OR
(1)(b) Has unlawful sexual connection with another person

Question 2

What is the Act, Section and Elements for Sexual Violation by Rape ?

Answer 2

CA1961 
Section 128(1)(a) 

Person
Rapes
Another person

Question 3

Rape defined …

Answer 3

Penetration of persons genitalia by one’s penis

• without consent
• without believing on reasonable grounds there was consent

Question 4

Has unlawful sexual connection defined:

Answer 4

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

Question 5

What must the Crown prove for 128(1)(a) and 128(1)(b) ?

Answer 5

• Complainant did not consent
• Offender did not believe the complainant consented
• If the Offender believe there was consent, grounds for belief were unreasonable

Question 6

Definition of Penetration ?

Answer 6

Affected by the slightest degree

Question 7

What proof is needed for Penetration ?

Answer 7

Statement
Admission
Medical exam

Question 8

Definition of Genitalia ?

Answer 8

S2 CA1961

Surgically constructed or reconstructed organ analogous to the natural occurring male and female genitalia

Question 9

What was held in R v Koroheke ?

Answer 9

Reproduction organs internal/external including the vulva and labia both internal/external and at the opening of the vagina

Question 10

Consent defined as

Answer 10

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

Question 11

Case law in relations to consent ?

Answer 11

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

Question 12

128A …

Answer 12

Allowing sexual activity does not amount to consent in some circumstances

1. Physical resistance or Protest
2. Force applied, Threat, Fear
3. Asleep or Unconscious
4. Alcohol or drug that they cannot consent or refuse
5. Intellectual, mental or physical condition or impairment of such a nature they cannot consent or refuse
6. Mistaken identification
7. Mistaken about its nature and quality

Question 13

What is outlined in 128(4) ?

Answer 13

Spouse who sexual violates their spouse has no legal defence due to the fact that the couple are legally married

Question 14

Section 128B …

Answer 14

1. Everyone who commits sexual violation is liable to imprisonment for a term not exceeding 20 years
2. Must be sentenced to imprisonment UNLESS court thinks
3. 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.

Question 15

Section 127

Answer 15

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

Question 16

Subjective and Objective Test ?

Answer 16

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 ?

Question 17

What was held in R v Herbert ?

Answer 17

True consent may be given reluctantly.

Question 18

Case Law relating to Objective Test ?

Answer 18

R v Gutuama

No reasonable person in the accused shoes could have thought that the complaint was consenting.

Question 19

Subsection 2 of Section 128A ?

Answer 19

(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

Question 20

Regarding s128A(6) who makes the mistake ?

Answer 20

The mistake is one made by the person submitting to the sexual connection, not a mistake by the defendant

Question 21

S128A(7) Mistake as to nature and quality of act

Answer 21

Consent is also nullified when the complainant was unaware of the true nature of the physical act to which they were agreeing

Question 22

What is the difference between Rape and Unlawful sexual connection ?

Answer 22

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.