Definitions Flashcards
Consent
A person’s conscious and voluntary agreement to do something desired or proposed by another.
R v Cox
R v COX
Consent must be full, voluntary, free and informed. Freely and voluntarily given by a person in a position to form a rational judgement
Person
Gender neutral, proven by judicial notice or circumstantial evidence.
R v Koroheke
R v KOROHEKE
Genitalia comprise the reproductive organs, interior and exterior, Includes the vulva and labia both interior and exterior, at the opening of the vagina.
R v Gutuama
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.”
R v Forrest and Forrest
R v FORREST AND FORREST
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.
In Practice this generally involves producing the vidtims birth certificate in conjunction with independent evidence that identifies the victim as the person named on the certificate.
R v Court
R v COURT
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of the complainant”.
R v Leeson
R v LEESON
The definition of indecent assault is an assault accompanied with circumstances of indecency.
Unlawful Sexual Connection
Unlawful Sexual Connection - Sec.128 (3), Crimes Act 1961 :
Person A has unlawful sexual connection with Person B if Person A has sexual connection with Person B -
• without person B’s consent to the connection,
and
• without believing on reasonable grounds that person B consents to the connection
Rape
Rape - Sec.128 (2), Crimes Act 1961:
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 –
• without person B’s consent to the connection,
and
• without believing on reasonable grounds that person B consents to the connection.
Genitalia
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).
Penis
Penis Section 2, Crimes Act 1961
Penis includes a surgically constructed or reconstructed organ analogous to naturally occurring Penis (whether the person concerned is male, female or of indeterminate sex).
Matters that do not constitute consent
Matters that do not constitute consent-Section 128A, Crimes Act 1961
- not protesting or offering physical resistance use of force
- Application of force to self or other, threats of force to self or other, or fear of force to self or other
- asleep or unconscious
- so affected by alcohol / drugs they cannot consent
- so affected by mental or physical impairment they cannot consent
- mistaken ID
- mistaken as to nature and quality of the act
Reasonable Grounds
Reasonable Grounds
A three step process:
- Subjective test – Absence of consent - What was the complainant thinking at the time? Was s/he consenting?
- Subjective test – Belief in consent -If s/he wasn’t consenting, did the offender believe s/he was consenting? What was the offender thinking at the time.
- Objective test – Reasonable grounds for belief in consent - If the offender believed complainant was consenting, was that belief reasonable in the circumstances. Ie what would a reasonable person have believed if placed in the same position as the defendant?
Define Child
Section 132(6)(a), Crimes Act 1961 Child means a person under the age of 12.
Define Young Person
Section 134(6)(a), Crimes Act 1961 Means a person under the age of 16yrs.
Sexual Connection
Sexual Connection - Section 2, CA61
a) Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purpose of:
- A part of the body of another person (or)
- An object held or manipulated by another person
(or)
b) Connection between the mouth or tongue of one person and part of another person’s genitalia or anus.
(or)
c) The continuation of connection of a kind described on paragraph (a) or paragraph (b).
Penetration
Penetration
Introduction and penetration have the same meaning,
Introduction to the slightest degree is enough to effect a connection. Section 2 (1A) Crimes Act 1961
Proof of Penetration
Proof of Penetration is required.
Proof may be provided by:
- the complainant’s evidence
- medical examination, (DNA, injuries)
- accused’s admissions.
Dependant Family Member Section 131A(1)
Dependant Family Member Section 131A(1) CA 61
For the purpose of section 131, 1 person is a dependant family member of another person,
a) if the other person has power or authority over him or her, and is;
(i) his or her parent, step parent, foster parent, guardian, uncle, or aunt
or
(ii) A parent, step parent, or foster parent of a person described in subparagraph (i)
or
(iii) A child of his or her parent or step parent
or
(iv) the spouse or de facto partner of a person described in subparagraph (i) or (ii) or (iii).
Dependant Family Member Section 131A(1)(b)
Dependant Family Member Section 131A(1)(b) CA 61
If they are members of the same family, Whanau, or other culturally recognised group, and the other person
(i) is not a person referred to in paragraph (a) but
(ii) has a responsibility for or significant role in, his or her care or upbringing; or
Dependant Family Member Section 131A(1)(c)
Dependant Family Member Section 131A(1)(c) CA 61
If he or she is living with the other person as member of the other persons family, and the other person is not a person referred to in paragraph (a), but has -
(i) power or authority over him or her
(ii) a responsibility for, or significant role in, her or her care or up bringing
R v Kaitamaki
If, after he has penetrated a woman, a man realises that she is not consenting(or has never consented) but he continue…that act of intercourse then becomes Rape
