Liability 128(1)(b)

Question 1

Sexual Violation by Unlawful Sexual Connection

Section and Penalty

Answer 1

Section 128(1)(b) Crimes Act 1961

20 Years Imprisonment

Question 2

Sexual Violation by Unlawful Sexual Connection

Ingredients

Answer 2

.1 A person

.2 Has unlawful sexual connection

.3 With another person

Question 3

.1 A person

Answer 3

Gender neutral proven by judicial notice and circumstantial evidence.

Question 4

.2 Has unlawful sexual connection

Answer 4

Unlawful Sexual Connection:

Person A has unlawful sexual connection with Person B if Person A has sexual connection with Person B - ,
(a) without Person B’s consent,
AND
(b) without believing on reasonable grounds that Person B consents to the connection.
Sec. 128(3), Crimes Act 1961

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Sexual Connection:

(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than 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 an a part of another person’s genitalia or anus; or

(c) the continuation of connection of a kind described in paragraph (a) or (b).
Sec. 2, Crimes Act 1961

_____

Penetration:
Introduction and penetration have the same meaning. Introduction to the slightest degree is enough to effect a connection.
Sec 2(1A), Crimes Act 1961

_____

Proof of penetration:

• the complainant’s evidence
• medical examination (DNA & Injuries)
• accused’s admissions

_____

Genitalia comprises the interior and exterior of reproduction organs, vulva, labia and vagina (including opening)
R v Koroheke

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Genitalia:
Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia. Whether person is male, female, indeterminate sex.
Sec. 2, Crimes Act 1961

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Objects held or manipulated:
Eg vibrator or bottle.
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Consent:
“Consent” is a person 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 Cox

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Matters that do not constitute consent:
- Not protesting or offering physical resistance
- application of force to self or other, threats of force to self or others, or fear of force to self or others
- asleep or unconscious
- so affected by drugs/alcohol they cannot consent
- so affected by mental or physical impairment they cannot consent
- mistaken ID
- mistaken as to nature and quality of the act.
Sec. 128A, Crimes Act 1961

_____

Reasonable Grounds - 3 Step Process:
Test 1 - Absence of Consent - Subjective Test
What was the complainant thinking at the time? Was s/he consenting?

Test 2 - Belief in Consent - Subjective Test
If s/he were not consenting did the offender believe the complainant was consenting? i.e. what was the offender thinking at the time?

Test 3 - Reasonable grounds for belief in Consent - Objective Test
If the offender believed the 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?

_____

Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought the complainant was consenting”
R v Gutuama

Question 5

.3 With another person

Answer 5

Gender neutral proven by judicial notice and circumstantial evidence.