128 SEXUAL VIOLATION

Question 1

Sexual Violation offences:
What must be proved?

Answer 1

(1) An intentional act of sexual connection towards the victim
(2) Victim did not consent
(3) No belief of consent, or the grounds for such belief were unreasonable

Question 2

Sexual Violation:
Is there a legal defence for a spouse? If so, what is it?

Answer 2

Section 128(4)
There is no legal defence on the grounds of marriage.

Before 1986 there were grounds for such a defence.

Question 3

Sexual Violation
128B, what is the penalty and what two things shall a Judge consider before giving a non-custodial sentence:

Answer 3

Sexual Violation
CA61 s128B
20 years
(i) Offenders circumstances
(ii) The nature of the offending

(1) Every one who commits sexual violation is liable to a term of imprisonment for a term not exceeding 20 years

(2) A person convicted of sexual violation must be sentenced to imprisonment unless, having regard to the matters stated in subsection (3), the court thinks that the person should not be sentenced to imprisonment
(3) The matters are:
(a) the particular circumstances of the person convicted; and
(b) the particular circumstances of the offence, including the nature of the conduct constituting it.

Question 4

Rape
ASPE (Act, Section, Penalty, Elements)

Answer 4

Sexual Violation
CA61 s128(1)(a)
20 years

A person
Rapes
Another person

CA61 s128(2)(a)&(b)

A 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,-

(a) without person B’s consent to the connection

And

(b) without believing on reasonable grounds that person B consents to the connection

Question 5

Unlawful sexual connection
ASPE

Answer 5

Sexual Violation
CA61 s128(1)(b)
20 years

A person
Has unlawful sexual connection
With another person

CA61 128(3)(a)&(b)

Person A has sexual connection with person B if Person A has sexual connection with person B -

(a) Without B’s consent to the connection

and

(b) without believing on reasonable grounds that person B consents to the connection

Question 6

What case law relates to genitalia?

Answer 6

Koroheke

Question 7

Sexual violation:

What must the crown prove in relation to the subjective and objective tests for consent?

Answer 7

The crown must prove:
(1) The complainant did not consent to the sexual act (subjective test) and
(2) The offender did not believe the complainant was consenting (subjective test)
Or
(3) If he did believe she was consenting, the grounds for such a belief were not reasonable (an objective test).

Question 8

What case law deals with the objective test for consent?

Answer 8

R v Gutuama

Question 9

What are the elements to 128(2):

Answer 9

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,—

(a)

without person B’s consent to the connection; and

(b)

without believing on reasonable grounds that person B consents to the connection.

Question 10

What are the elements to 128(3):

Answer 10

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 on reasonable grounds that person B consents to the connection.

Question 11

Which offence is this:
If a penis penetrated genitalia.

Answer 11

Sexual violation by rape
s128(1)(a) and 128B

Question 12

Which offence is this:
If any other part of body is introduced into genitalia or anus

Answer 12

Sexual violation by unlawful sexual connection.
s128(1)(b) and 128B

Question 13

Which offence is this:
If an object is held or manipulated into genitalia or anus

Answer 13

Sexual violation by unlawful sexual connection
s128(1)(b) and 128B

Question 14

Which offence is this:
If mouth or tongue connected/had contact with genitalia or anus

Answer 14

Sexual violation by unlawful sexual connection
s128(1)(b) and 128B

Question 15

When charging with Sexual Violation, what legislation must you include?

Answer 15

s128(1)(a) and 128B - Sexual violation by rape
or
s128(1)(b) and 128B - Sexual violation by unlawful sexual connection

Question 16

Where is the penalty for Sexual Violation found?

Answer 16

CA61 s128B

Question 17

Where is the definition for the two forms of Sexual Violation found?

Answer 17

CA61 s128(2)&(3)

Question 18

When does Sexual Connection become Unlawful Sexual Connection?

Answer 18

When the sexual connection is done:

(a) without person B’s consent to the connection; and

(b) without believing on reasonable grounds that person B consents to the connection.

Question 19

Define the following terms and point out their differences:

(1) Sexual Connection
(2) Unlawful Sexual Connection
(3) Rape
(4) Sexual Violation

Answer 19

(1) Sexual Connection is one person connecting sexually with another physically. It is defined in CA61 S2. It is not necessarily unlawful on it’s own.

(2) Unlawful Sexual Connection is sexual connection that becomes unlawful because it is done without consent and without the defendant believing on reasonable grounds at the time that there was consent.

(3) Rape is one person genitalia being penetrated by another person’s genitalia without consent.

(4) Sexual Violation: both rape and unlawful sexual connection are considered to be Sexual Violation. The term encompasses both.