GENERAL Flashcards
Sexual Violation:
What are the two matters a court may consider when deciding whether to impose imprisonment?
What section is this found in?
S128B(3)
(a) particular circumstances of the person convicted
(b) particular circumstances of the offence
How is Penetration proved?
May be established by:
The complainant’s evidence
Medical examination (injuries and DNA)
The defendant’s admissions
Is Anus included in the definition of genitalia?
No
If penile penetration of the anus occurs then this would not be rape. The appropriate charge would be 128(1)(b).
Subjective test for Absence of Consent:
Who holds the burden of proof?
Must the Crown prove that the complainant was not consenting, or must the defendant prove they were?
The burden falls on the Crown to prove the complaint was not consenting.
Subjective test for belief in consent:
(What was the defendant thinking at the time).
If he believed the complainant was consenting then what test must be applied?
The objective test must be applied to determine whether there was a reasonable basis for his belief.
Is Recklessness as to whether or not the complainant is consenting regarded as having a Reasonable Belief in consent?
No.
Recklessness is not consistent with having a reasonable belief.
When is consent relevant?
(A what point in time does it become relevant)
At the time the act took place
R v Adams.
List 5 conditions outlined in C61 s128A
Consent can not be considered based on a person’s:
(1) lack of resistance or protest
(2) submission to force or fear
(3) being asleep or unconscious
(4) intoxicated
(5) mental or physical impairment
(6) mistaken identity
(7) is mistaken about the nature and quality
Can a lack of protest or objection be relevant to forming a reasonable belief in consent?
Yes.
It can be relevant as a contributor to the belief but it can’t form the sole basis for such a belief. Section 128A(1) specifically addresses this issue and stipulates that a lack of protest or resistance is not regarded as consent.
If a woman said to a man that she consents to him going ahead and having sex with her once she falls asleep, and he does so, then she makes a complaint afterwards, can he say he had her consent?
No.
What is said or done before the act is not the decisive factor for consent. The decisive factor is whether there was consent at the time the act took place.
Also, s128A(3) stipulates that a sleeping person can not give consent.
Is it possible for an intoxicated person to give valid consent?
Yes, it is possible.
But, the degree of intoxication is relevant. For example, if the person is intoxicated to the degree where they were incapable of giving a free and rationed consent, then the consent would not be valid.
Give an example of s128A(1)
Failure to resist or object.
E.g.
A person remains while being subjected to sexual connection by another person. They don’t know what to do. Their lack of resistance is not consent.
Give an example of 128A(2)
(Force, threat, or fear)
Submitting to rape while a knife is held to their throat.
128A(3) a person does not consent if…
They’re asleep or unconscious.
128A(4) a person does not consent if…
They’re so affected by alcohol to the point they can not give true consent.
