Definitions and Case Law

Question 1

Rape

Answer 1

Section 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 Bs genitalia by Person As penis -
- without Person Bs consent AND
- without believing on reasonable ground that person B consents to the connection

Question 2

Penetration

Answer 2

Section 2(1A) Crimes Act 1961
Introduction and penetration have the same meaning.

Introduction to the slightest degree is enough to effect a connection.

Question 3

Proof of Penetration is Required

Answer 3

Proof of penetration may be provided by:

• the complainants evidence
• medical examination (DNA, injuries)
• accused’s admissions

Question 4

Genitalia

Answer 4

section 2 Crimes Act 1961
Genitalia includes any surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female or of indeterminate sex)

Question 5

R v Koroheke

Answer 5

The genitalia comprise the reproduction organs, interior and exterior… they include the vulva (and) the labia both internal and exterior at the opening of the vagina

Question 6

Penis

Answer 6

Section 2 Crimes Act 1961
Penis includes any surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female or of indeterminate sex)

Question 7

Consent

Answer 7

“Consent” is a persons conscious and voluntary agreement to something desired or proposed by another

Question 8

R v Cox

Answer 8

Consent must be…. full, voluntary, free and informed…. freely and voluntarily given by a person in a position to make a rational judgement

Question 9

Matters that do not constitute consent sec. 128(A)

Answer 9

• not protesting or offering resistance to the application of force
• the application of/ threat of/ fear of force to self or other
• asleep or unconscious
• so effected by drugs/alcohol they cannot consent
• so effected by physical or mental impairment they cannot consent
• mistaken ID
• mistaken as to the nature and quality of the act

Question 10

Reasonable Grounds (3 tests)

Answer 10

Reasonable Grounds
The establishing of reasonable grounds is a three step process.

Subjective Test, Step 1: Absence of consent
- What was the complainant thinking at the time? i.e. was s/he consenting?

Subjective Test, Step 2: Belief in Consent
- Did the offender believe the complainant was consenting? i.e.: what was the offender thinking?

Objective Test, Step 3: Reasonable Grounds for belief of consent
- If the offender believed the complainant was consenting, was that belief on reasonable grounds? What would a reasonable person have believed if placed in the same position as the defendant?

Question 11

R v Gutuama

Answer 11

Under the objective test the Crown must prove that “no reasonable person in the accuseds shoes could have thought the complainant was consenting”

Question 12

Unlawful sexual connection

Answer 12

Section 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 Bs consent to the connection AND
- without belief on reasonable ground that Person B consents to the connection

Question 13

Sexual Connection

Answer 13

Section 2 Crimes Act 1961

a) connection effected by the introduction into the genitalia or anus of a person, other than for genuine medical purposes, of:
i) the part of the body of another person, OR
ii) an object held or manipulated by another person, OR
b) connection between the mouth and tongue of one person and a part of another persons genitalia or anus, OR
c) continuation of connection of a kind described in paragraph (a) or paragraph (b)

Question 14

Sexual Violation

Answer 14

Section 128(1) Crimes Act 1961

(1) Sexual Violation is the act of a person who:
a) rapes another person; or
b) has unlawful sexual connection with another person

Question 15

section 131A(1)(c) Dependant family member

Answer 15

if she or she is living with the other person as a 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; and
ii) a responsibility for, or significant role in his or her care or upbringing

Question 16

Indecent Assault

Answer 16

R v Leeson

The definition of “indecent assault”… is an assault accompanied with circumstances of indecency….”

Question 17

Indecent

Answer 17

An act that is “indecent” has sexual connotations and involves conduct directed at a person that is offensive to public moral values

Question 18

R v Court

Answer 18

Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of (the complainant)

Question 19

Child (sec. 132(6)(a) Crimes Act 1961)

Answer 19

Child means a person under the age of 12 years

Question 20

Sec 127 CA 61

Answer 20

There is no presumption of law that a person is incapable of sexual connection because of his or her age ie no one can claim age as a defence

Question 21

Section 134A CA61 statutory defence

Answer 21

It is a defence to a charge under s134 if the person charged can prove

• before the time of the act he had taken reasonable steps to find out whether the person was over 16 AND
• at the time of the act, s/he believed the person was over 16yrs AND
• the young person was consenting

Question 22

R v Leeson

Answer 22

The definition of indecent assault is an assault accompanied with circumstances of indeceny