CIB 007 - Sexual Offences Flashcards
In all cases of sexual violation, what must the Crown prove beyond reasonable doubt?
• there was an intentional act by the offender involving sexual connection with the complainant, and
• the complainant did not consent to the sexual act, and
• the offender did not believe the complainant was consenting, or
• if the offender did believe the complainant was consenting, the grounds for such a belief were not reasonable.
Name the act, section and elements for Sexual Violation By Rape.
Section 128(1)(a) Crimes Act 1961
• A person
• Rapes
• Another person
Name the act, section and elements for Sexual Violation By Unlawful Sexual Connection.
Section 128(1)(b) Crimes Act 1961.
• A person
• Has unlawful sexual connection
• With another person.
Define sexual connection.
Section 2 Crimes Act 1961.
Sexual connection means —
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise then for genuine medical purposes, of —
(i) a part of the body of another person; or
(ii) an object held or manipulated by another person; or
(b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or
(c) a continuation of connection of a kind described in paragraph (a) or (b).
Proof of penetration may be established by:
• the complainant’s evidence
• medical examination, including physical injuries and DNA evidence
• the defendant’s admissions.
Define ‘genitalia’.
Section 2 Crimes Act 1961
Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female, or of indeterminate sex).
What was held in R v Koroheke in relation to genitalia?
R v Koroheke
The genitalia comprise the reproduction organs, interior and exterior … they include the vulva [and] the labia, both interior and exterior, at the opening of the vagina.
Define ‘penis’.
Section 2 Crimes Act 1961.
Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person is male, female, or of indeterminate sex).
Define ‘consent’.
“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.
What was held in R v Cox in relation to consent?
Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment”.
What was held in R v Gutuama in relation the objective test in consent?
R v Gutuama
Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought the [the complainant] was consenting”.
Invalid consent.
Allowing sexual activity does not amount to consent in some activities.
Identify these circumstances.
Section 128A Crimes Act 1961
A person does not consent if —
• he or she does not protest or offer physical resistance.
• he or she allows the activity because of force to him or her or some other person, threats of the application of force to him or her or some other person, or the fear of the application of force to him or her or some other person.
• the activity occurs while he or she is asleep or unconscious.
• the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
• the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse consent to the activity.
• he or she allows the sexual activity because he or she is mistaken about who the other person is.
• he or she allows the act because he or she is mistaken about it’s nature and quality.
What was held in R v Koroheke in relation to invalid consent?
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 co-operate, is not true consent.
Define ‘rape’.
Section 128(2) Crimes Act 1961.
(2) Person A rapes Person B of 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.
Name the section, act and elements for ‘Sexual Violation by Unlawful Sexual Connection’.
Section 128(1)(b) Crimes Act 1961.
• A person
• Has unlawful sexual connection
• With another person.
Name the act, section and elements for ‘Attempted sexual violation’.
Section 129(1) Crimes Act 1961.
• Attempts
• To commit sexual violation
• Of the other person.
Name the section, act and elements for ‘Assault with intent to commit sexual violation’.
Section 129(2) Crimes Act 1961.
• Assaults
• Another person
• With intent
• To commit sexual violation
• Of the other person.
List the two main forms of sexual violation.
The two forms of sexual violation are rape and unlawful sexual connection.
Discuss the penalty provisions for sexual violation as set out in s128B of the Crimes Act 1961.
Punishment for sexual violation is imprisonment for a term not exceeding 20 years, and imprisonment should always be imposed on conviction unless there are special circumstances that justify a departure from the rule.
In negating consent, the Crown has to prove one of three things. List the three things.
The Crown must prove that:
• the victim did not consent, or
• the victim’s consent was not valid, or
• the defendant did not believe in reasonable grounds that the victim was consenting.
Discuss the two elements that need to be proved in a charge of Assault with intent to commit sexual violation, s129 Crimes Act 1961.
The two elements that need to be proved for a charge of Assault with intent to commit sexual violation are that the offender:
• assaulted the victim, and
• intended to commit sexual violation.
Explain the difference between rape and unlawful sexual connection.
Rape is a specific form of unlawful sexual connection that involves the penetration of the complainant’s genitalia by the offender’s penis.
Unlawful sexual connection (s128(1)(b) Crimes Act 1961) captures all forms of non-consensual sexual connection, other than those that amount to rape.
It therefore includes:
• penetration of a person’s genitalia or anus by another person’s body (such as finger in vagina, or penis in the anus)
• penetration of a person’s genitalia or anus by an object held or manipulated by another person (i.e. vibrator, deodorant bottle or other hand-held objects)
• touching of a person’s genitalia or anus by another person’s mouth or tongue (i.e. oral sex).
If a male has sexual intercourse with his 18-year-old home stay student, what offence has he committed?
No offence (18 years and over is not an offence).
When is the offence of sexual grooming s131B Crimes Act 1961 complete?
• When the offender intentionally meets the young person
• When the offender travels with intention of meeting the young person
• When the offender arranges for or persuades the young person to travel with the intention of meeting him or her
