Case Law - Sex Flashcards
R v Koroheke
Genitalia
Genitalia comprises of the reproductive organs, interior and exterior…. include the vulva and the labia, both interior and exterior, at the opening of the vagina.
R v Cox
Consent definiton as well
Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.
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 Gutuama
Objective Test
Under the objective test the Crown must prove that “no reasonable person in the accused shoes could have thought that the complainant was consenting”.
R v Adams
When is consent relevant?
The material time when consent and the belief in consent is to be considered is at the time the act actually took place.
R v Koroheke
Force, threat or fear of force
Important to distinguish between consent that is freely given and submission by a woman to what she may regarding as unwanted but unavoidable.
For example, submission by a woman because she is frightened of what might happen if she doesn’t cooperate, is not true consent.
R v Harpur
Attempts
An attempt includes an act or omission constituting a substantial step in a course of conduct to culminate in commission of the crime.
R v Harpur
Proximity
Defendants conduct may be considered in its entirety. Considering how much remains to be done, is always relevant though not determinative.
R v Cox
Consent of a child
Do not exclude the possibility of a child, 10 or 11, may be able to give, free, full voluntary and informed consent to sexual intercourse, the circumstances that justify this would be exceptional if not rare.
R v Cox
Reasonable belief in consent of a child
No reasonable adult would have grounds for believing that a 10 or 11 year old girl has the experience or maturity to understand the nature and significance of the act.
R v Forrest & Forrest
Proof of age
Best evidence possible in the circs should be adduced by the prosecution in proof of the victim’s age.
R v Court
Indeceny
Indecency means “conduct that right thinking people will consider an affront of the sexual modesty of the complainant”.
R v Leeson
Indecent assault
The definition of “indecent assault” is assault accompanied with circumstances of indecency.
R v Cook
Consent
held that to be effective, consent must be “real, genuine or true consent, and that it may be conveyed by words or conduct or both.”
R v Kaitamaki
Continuation
a man broke into a young woman’s house and raped her twice, claiming it was only during the second act of intercourse that he became aware she was not consenting. He admitted however that he had continued regardless.
The Court held that after he had penetrated the woman and then realises that she is not consenting (or has never consented) but continues than that act of intercourse becomes rape.
R v Adams
“the material time when consent, and belief in consent, is to be considered is at the time the act actually took place.
The complainant’s behaviour and attitude before or after the act itself may be relevant to that issue, but it is not decisive.
