Liability - Section 128 (1)(b) Sexual Violation by Unlawful Sexual Connection

Question 1

Section and Penalty

Answer 1

S128(1)(b) CA61

20 Years Imp

Question 2

Ingredients

Answer 2

1) A person
2) Has Unlawful Sexual Connection With
3) Another Person

Question 3

Person

Answer 3

Gender Neutral. Proven by Judicial notice or circumstantial evidence.

Question 4

Unlawful Sexual Connection

Answer 4

S128(3) CA61

Person A has unlawful sexual connection with person B if person A has sexual connection with person B—

(a) without person B’s consent to the connection; and
(b) without believing on reasonable grounds that person B consents to the connection.

Question 5

Sexual Connection

Answer 5

S2 CA61

Sexual connection means—
(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 and a part of another person’s genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)

Question 6

Introduction/Penetration

Answer 6

S2(1A) CA61

Introduction and penetration have the same meaning. Introduction to the slightest degree is enough to effect a connection.

Question 7

Proof of penetration is required

Answer 7

Proof may be provided by:

• Complainants evidence
• Medical examinations (DNA, injuries)
• Accused’s admissions

Question 8

Genitalia

Answer 8

S2 CA61

Genitalia includes a surgically constructed or reconstructed organ, analogous to a naturally occurring male or female genitalia (whether the person concerned is male, female or of indeterminate sex).

Question 9

R v Koroheke

Genitalia

Answer 9

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.

Question 10

Penis

Answer 10

S2 CA61

Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female or of indeterminate sex).

Question 11

Consent

Answer 11

Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.

Question 12

R v Cox

Answer 12

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

Question 13

Allowing Sexual Activity does not amount to Consent in some Circumstances

Matters that do not Constitute Consent

Answer 13

S128A CA61

A person does not consent to sexual activity:

(1) Just because he or she does not protest or offer physical resistance to the activity

(2) If he or she allows the activity because of
- Force applied to him or her or some other person
- The threat (express or implied) of the application of force to him or her or some other person
- The fear of the application of force to him or her or some other person

(3) If the activity occurs while he or she is asleep or unconscious.
(4) If 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.
(5) If 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 to consent to the activity.
(6) With another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.
(7) If he or she allows the act because he or she is mistaken about its nature and quality.

Question 14

Reasonable Grounds Three Step Process

Subjective Test - Step 1

Answer 14

Absence of Consent

What was the complainant thinking at the time? Was she consenting?

Question 15

Reasonable Grounds Three Step Process

Subjective Test - Step 2

Answer 15

Belief in Consent

If she wasn’t consenting, did the offender believe she was consenting. i.e. what was the offender thinking at the time.

Question 16

Reasonable Grounds Three Step Process

Objective Test - Step 3

Answer 16

Reasonable grounds for belief in consent

If the offender believed the complainant was consenting, was that belief reasonable in the circumstances. i.e. what would a reasonable person have believed if placed in the same position.

Question 17

R v Gutuama

Answer 17

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.

Question 18

No Presumption because of Age

Answer 18

S127 CA61

There is no presumption of law that a person is incapable of sexual connection because of his or her age.