MCQ/Short Answers Flashcards
What Must be Proved in all cases of violation?
- Intentional act by the offender involving sexual connection with the complainant.
- Complainant did not consent to the sexual act
- The offender did not believe the complainant was consenting
OR - if the offender did believe the complainant was consenting, the grounds for such a belief were not reasonable.
What must an investigation into a violation prove:
- The defendant knew they did not have the victims consent but acted anyway (offenders mens rea)
- The defendants grounds for believing the victim consented were unreasonable (R vGutuama)
Is there a legal defence if a husband rapes his spouse?
S128(4) Makes it clear that a spouse who violates his spouse has no legal defense due to the fact they are married.
Discuss sentencing for S128 offences?
20 years
S128B
(2) a person convicted of a sexual violation must be sentenced to imprisonment unless having regards to the matters in Subsection 3, the courts thinks that the person should not be sentenced to imprisonment
(3)
The matters are
a) the particular circumstances of the person convicted
b) the particular circumstances of the offence including the nature of the conduct constituting it
What level of penetration is required to prove the offence?
CA S2 - (1A) For the purpose of sexual connection, introduction to the slightest degree is enough to effect a connection.
Penetration must be proved but the extent of penetration is not relevant no matter how slight or fleeting.
Is penetration of the anus rape?
Anus is not included within the definition of genitalia and therefore non consensual penile penetration of the anus is not rape.
Appropriate charge is violation by unlawful sexual connection.
Discuss connection between the mouth or tongue and genitals
In case of oral sexual connection it is not necessary for penetration any touching is sufficient.
What are genuine medical purposes?
In some medical procedures involves penetration of a patient by a doctor. Provided this is done for genuine medical purposes this is excluded from the definition of sexual connection
However a doctor who penetrates a patient on the pretense of medical necessity when it is actually for sexual gratification it may amount to sexual connection.
Define continuation?
Definition of sexual connection includes continuation of such acts capturing where sexual activity is started consensually but later withdrawn.
There is an obligation on a person to stop activity at the point he realizes the other person is, or may be no longer willing. Failure to do so may render a previously consensual act unlawful.
Can only biological males commit rape?
The definition of rape is where a penis penetrates the genetalia of the complainant. Given the wide definition of penis any person with a penis is capable of committing the offence of rape regardless of biological gender.
What is discussed in S127 CA61?
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
This provision means that any person of any age is capable in a legal sense of being involved in sexual connection.
Therefore it would not be a defence to a sex related charge to say that a party was too old or too young to have sexual connection.
What must the crown prove in relation to consent?
The complainant did not consent to the act (subjective test) and
The offender did not believe the complainant was consenting (subjective test)
OR if he did believe she was consenting, the grounds for such a belief werre not reasonable (objective test)
How is consent conveyed?
R v COOK
Held that to be effective, consent must be “real genuine or true consent and that it may be conveyed by words conduct or both”
Can a person be reckless to having consent?
Recklessness as to whether the complainant is consenting or not is not consistent with having a reasonable belief in consent.
When is consent relevant?
AT THE TIME OF THE ACT TAKING PLACE
R v Adams Found that the material time when consent and belief in consent is to be considered is at the time the act actually took place.
The complainants behavior and attitude before or after the act itself may be relevant to that issue, but is not decisive.
The real point is whether there was true consent or a reasonably based belief in consent at the time the act took place.
What matters do not constitute consent?
S128A
A person does not consent:
1) Because they do not protest or offer physical resistance to the activity.
2) If he/she allows the activity because of
-Force applied to them or another
-The threat of application of force to them or another
-Fear of application of force to them or another
3) While they are asleep or unconscious
4) So affected by alcohol or drugs that they cannot consent or refuse to consent
5) While they are affected by an intellectual mental or physical condition or impairment of such a degree or nature that they cannot consent or refuse to consent.
6) If they allow the activity if they are mistaken as to who the person is
7) If they allow the act because they are mistaken about the nature and its quality.
8) This section does not limit which a person does not consent.
9) For the purposes of this section
-Allows includes acquiesces in ,submits to ,participates in and undertakes sexual activity. in relation to a person means :
- Sexual connection with the person
- The doing on the person of an indecent act which without the persons consent would be an indecent assault.
Discuss Lack of protest or resistance
S128A (1)
This does not mean a person is consenting even if the lack of consent has not been communicated. What is relevant is the complainants state of mind.
The fact the complainants lack of consent not being communicated may be relevant to whether the defendant believed she was consenting. And whether the belief was reasonable.
Discuss Force
S128A (2)(a)
Allowing sex does not amount to consent if force has been used to obtain compliance. Although the act does not specify the degree of force necessary, force that is intended to cause bodily harm would normally negate a claim that consent had been given.
Discuss threats to gain consent
S128A (2)(b)
The threat must be a threat to use force against victim or other person, the circumstances will establish that the threat was sufficient to negate genuine consent.
Discuss consent by fear
S128A (2)(c)
The victim must be afraid that force will be used against them or another if force was not actually used or threatened.
R v Koroheke
Discuss asleep or unconscious
S128A (3)
States in absolute terms that if the complainant is asleep or unconscious that activity is non consensual.
This is based on the fact that the relevant time for consent is at the time of the activity.
Therefore even prior agreement to sexual activity while the complainant is asleep or unconscious does not constitute consent.
Discuss Affected by alcohol or drugs
S128A (4)
Consent is not simply invalid because a person is intoxicated, the question is whether they were affected to such an extent that they were incapable of understanding the situation and giving rational or reasoned consent.
In R v Isherwood the complainant submitted to sex with two men who had spiked her drink. As a result she felt unable to resist.
Court held that proof that the influence of drugs has a disinhibiting effect on the mind of the complainant is not necessarily incompatible with consent. It is all a question of degree.
Court reaffirmed that if consent is to be valid the complainant has to be able to understand the situation and be capable of making their mind when agreeing to sexual acts.
It may be possible for the crown to prove a complainant was not consenting even though she may have no recollection of the events herself.
Discuss Intellectual mental or physical impairment
S128A (5)
Where the validity of the consent is in question due to impairment, the issue is whether the impairment is so severe it deprives the complainant of the capacity to give or withhold consent.
Where threshold for violation not met but vulnerability of complainant taken advantage of charge under S138 exploitation of a person with significant impairment.
Discuss mistaken identity
128A(6)
Consent is nullified if it is based on the mistaken id of a person
Eg a women is may have consented to be a surrogate mother for a couple and is expective a visit. But someone else comes and takes advantage of her mistaking his identity.
Note that the mistake is one made by the person submitting to the connection not a mistake by the defendant.
R v Murphy defendant got into his bed beside a drunk sleeping woman who had consensual sex with another male. Murphy initiated and the women participated willingly believing it was the other male. Murphy convicted of rape.
Discuss mistaken as to nature and quality of act
Consent is also nullified when the complainant was unaware of the true nature of the act to which they were agreeing.
Such mistakes are limited to the physical character of the connection.
Means that agree to act other than intercourse but intercourse in fact takes place. They cannot be have said to have given consent
Eg consent to vaginal and anus penetrated.
Mistake is the one made by the person submitting to the sexual connection not the defendant.
Discuss consent given by fraudulent means apart from identity or nature of the act
ANY OTHER FRAUDULENT REPRESENTATION that makes the complainant become mistaken about something other than the offenders identity or nature and quality of the act will not affect that consent was given.
e.g Lying about extravagant wealth or status, or promise of money or gifts not delivered.
Discuss Attempted Sexual violation
S129(1) CA61 10yrs
S72 CA Attempts def
Attempts sexual violation
What distinguishes attempted violation and assault with intent to commit violation?
An attempt to commit sexual violation does not necessarily involve a assault
An assault with intent to commit violation may not be sufficiently proximate to the full offence to constitute an attempt.
Discuss Attempts
Attempts SA72 CA61
1) Having intent to commit an offence does or omits an act for the purpose of accomplishing its object is guilty of an attempt to commit the offence intended whether or not in the circumstances it was possible to commit the offence.
2) Question of act is not only a preparation or an attempt is a question of law
3) Act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or approximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit the act.
What must the INTENT must the crown prove in cases of attempted violations?
Defendant intended to commit the full act of sexual violation and acted as he did for the purpose of achieving that aim.
What must the crown prove for the offence of attempted violation?
Intended to have sexual connection with the complainant.
Complainant did not consent to the intended sexual connection
Defendant did not believe on reasonable grounds that the complainant was consenting.
What stage must the defendant be at to be guilty of an attempt?
To be guilty of an attempt the defendant must have passed the stage of preparation and started a process intended to lead to the commission of the offence.
In r v harpur the defendant sent several texts which he detailed acts he wanted to perform on a 4yo niece. He arranged for the niece to be brought to him for that purpose but was part of a sting operation. Held sufficiently proximate for attempts.
How does the court judge that an act is sufficiently proximate?
Court will analyze defendants conduct. And cumulatively assess circumstances and behavior and steps taken to infer if defendant had intended to commit the full offence and had started to do so even if he was several steps removed from ultimate act.
Must be common sense that the defendant was gone beyond mere preparation to actually take steps to committing the act.
What acts may constitute an attempt?
- Lying in wait searching or following the contemplated victim
- Enticing the victim to go to the scene of the crime
- Reconnoitering the scene of the contemplated offence.
- Unlawful entry of a structure in which it is contemplated that the offence will be committed
- Possession or collection of materials to be used during the offence
- Soliciting an innocent agent to engage in conduct constituting an offence.
What must be proved with cases of Assault with intent to commit violation?
At the time of the assault:
Intended to have sexual connection with the complainant
The complainant did not consent to the sexual connection
And the defendant did not believe on reasonable ground that the complainant was consenting.
What was discussed in Cox V R around a childs ability to give consent?
Although we do not exclude the possibility that a child ten or 11 may be able to give a full voluntary free and informed consent the circumstances would be exceptional if not rare.
What was discussed in Cox V R around a reasonable belief in a child giving consent?
save in exceptional and rare circumstances even where she indicates an agreement to the act, no reasonable adult would have grounds for believing a 10 or 11 yo would have the experience or maturity to understand the significance of the act.
What in practice should be presented as proof of age evidence?
In practice this will be producing the birth certificate and independent evidence that identifies the complainant as the person in the certificate.
Ideally that independent evidence will be a parent.
Could also being the complainant saying what year they started school, when they habitually celebrate their birthday
What was held in R v Clancy
That in a case where the birth certificate was not produced that the mother gave evidence to the complainants date of birth was sufficient to prove age.
