MISC - Questions - Sex 1

Question 1

In all cases of sexual violation the Crown must prove “beyond reasonable doubt” what?

Answer 1

• There was an intentional act by the offender involving sexual connection with the complainant, AND
• The complainant did not consent to the sexual act, AND
• The offender did not believe that the complainant was consenting, OR
• If the offender did believe the complainant was consenting, the grounds for such belief were not reasonable.

Question 2

What is the “No legal Spousal” defence?

Answer 2

S.128(4):

a spouse who sexually violates their spouse has no legal defence due to the fact that the couple are legally married. (before 1986, a man may have had such a defence).

Question 3

Sexual Violation by Rape

Answer 3

S.128 (1)(a) C.A 61

• A person
• Rapes
• Another person

Question 4

Sexual Violation by unlawful sexual connection

Answer 4

S.128 (1)(b) C.A 61

• A person
• Has unlawful sexual connection
• with another person

Question 5

What constitutes Rape of person B, by person A?

Answer 5

S.128 (2)(a)&(b)

(2) Person A rapes Person B, if person A has sexual connection with Person B, affected by the penetration of Person B’s genitalia by Person A’s penis -
(a) without person B’s consent to the connection; and
(b) without believing on reasonable grounds that person B consents to the connection.

Question 6

Define “Sexual Connection”?

Answer 6

S.C means (s.2 C.A interpretation):

(a) connection affected by the introduction into the genitalia or anus of one person, otherwise then 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 genatalia or anus; or
(c) the continuation of connection of a kind described in para (a) or (b).

Question 7

How much penetration is necessary ?

Answer 7

Slightest degree of penetration is sufficient.

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

Question 8

How do you prove penetration?

Answer 8

May be established by:

• the complaints evidence
• medical examination, including physical injuries and DNA evidence.
• the defendant’s admissions

Question 9

Define “Genitalia”?

Answer 9

Includes a surgically constructed or reconstructed organ analogous to naturally occuring male or female genitalia (whether person male, female or of indeterminate sex).

Question 10

What is R v Koroheke?

Answer 10

The Genitalia comprise the, reproductive organs, interior & exterior.. they include the vulva & labia, both interior & exterior, at the opening of the vagina.

Question 11

Define “Penis”?

Answer 11

Includes a surgically constructed or reconstructed organ analogous to a naturally occuring penis. (Where person male, female or of indeterminate sex).

Question 12

What is the “No presumption because of age”?

Answer 12

S.127 -

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

Question 13

Define consent, along with the relevant case law?

Answer 13

A person’s conscious and voluntary agreement to something desired or proposed by another.

R v Cox “consent must be FULL, VOLUNTARY, FREE and INFORMED.. freely and voluntarily given by a person in a POSITION to form a RATIONAL JUDGEMENT”

Question 14

Identify and discuss the relevant case law for the objective test relating to consent?

Answer 14

R v Gutuama:

Under the Objective test, Crown must prove “no reasonable person in the accused shoes could have thought the complainant was consenting.

Question 15

Allowing sexual activity does not amount to consent in some circumstances, what are they?

Answer 15

S.128A, a person does not consent to sexual activity -

(1) Just because he/she does not protest or offer physical resistance.
(2) Force applied to him/her or some other person, the threat (expressed or implied) of the application of force to him/her or some other person, the fear or the application of force to him/her or some other person.
(3) Whilst he/she is asleep
(4) He/she affected by alcohol or some other drug, that he/she cannot consent or refuse to consent to the activity.
(5) Affected by intellectual, mental, or physical condition or impairment of such a nature and degree that he/she cannot consent or refuse to consent.
(6) Mistaken about who the person is.
(7) He/she allows the act because he/she is mistaken about the nature and quality.

Question 16

In relation to threats of violence, fear of force and force, identify and discuss the relevant case law?

Answer 16

R v Koroheke -

Important to distinguish between consent that is freely given and submission.

Eg. Submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.

Question 17

Define genitalia?

Answer 17

Genitalia are the external organs of reproduction in males and females.

As the term literally means the organs of generation.

Does not include public hair or breasts.

Includes surgically constructed organs.