CASE LAW Flashcards
What case law relates to defining genitalia and what does it say?
R v Koroheke
The genitalia comprise the reproductive organs, interior and exterior … they will include the vulva and the labia, both interior and exterior, at the opening of the vagina.
Give the case law for consent:
Cox
Consent must be “full, voluntary, free, and informed… freely and voluntary given by a person in a position to form a rational judgement”.
What case law deals with the objective test for consent and what does it say?
R v Gutuama
Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that the complainant was consenting.
Memory aid:
Gumboot-Gutuama
No reasonable person in those shoes…
What case law addresses the issue of whether consent is given through fear? What does it say?
R v Koroheke
It is important to distinguish between consent that is freely given and submission by a woman 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 cooperate, is not true consent.
128A(7) what does this subsection relate to and give an example?
Mistaken as to the nature and quality of the act.
A girl being mislead by her choir master that the act he was about to perform on her was a medical intervention to improve her singing ability. He rapes her yet she still sings like shit.
Attempted Sexual Violation:
What is the case law regarding Attempt?
Taking a substantial step
planned to culminate,
in the commission of a crime.
R v Harpur
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”.
Attempt:
R v Harpur provides case law for two points of definition. The first is:
“An attempt includes ‘an act or omission constituting a substantial step of conduct planned to culminate in his commission of the crime’”.
What does the other say?
R v Harpur
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 its entirety. Considering how much remains to be done is always relevant, though not determinative.
Consent.
What is the case law for a child’s ability to give rational and informed consent to sexual connection:
Cox v R
“Although we do not exclude the possibility that a child of ten or eleven may be able to give a full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare.
Paraphrased:
(1) 10-11 child lacks maturity of understanding about intercourse.
(2) Therefore, fully informed and rational consent only possible in exceptional circumstances.
(3) Therefore no rational adult could conclude such consent.
(4) So, satisfying the subjective and objective tests would require exceptional circumstances.
(5) If no exceptional circumstances exist, then there is no consent.
Reasonable belief in consent from a child:
What is the case law that deals with whether an adult could reasonably believe they had consent from a child, and whether that child could understand the nature and significance of the act?
Cox v R
“Save in exceptional and rare circumstances … even where she indicates an agreement to the act occurring … no reasonable adult would have grounds for believing that a ten or eleven year old girl has the experience or maturity to understand the nature and significance of the act.”
What is the case law for Indecent Assault:
R v Leeson
“The definition of indecent assault… is an act accompanied with circumstances of indecency…”
