Rape and U/L Sexual Connection

Question 1

Rape can be gender neutral

Answer 1

Although the statutory wording of s128 is gender neutral, the requirement in section 128(2) that penetration is effected by a penis means that in practice, rape offenders will almost invariably be male.

Note, however, that the definitions of “genitalia” and “penis” in s2 include “surgically constructed or reconstructed” organs, extending the offence to include those who have undergone “gender reassignment surgery” (a sex change operation).

Question 2

Complainants age is not relevant

Answer 2

The complainant’s age is also not relevant to charges under section 128, as the criminality involves sexual connection with a person without their consent, irrespective of their age.

However that age is relevant to the sexual offences covered in sections 132 and 134 and other sections of the Crimes Act 1961.

Question 3

Forms of sexual connection other than those that amount to rape

Answer 3

It therefore includes:
- penetration of a person’s genitalia or anus by a part of another person’s body (such as a finger in the vagina, or a penis in the anus).
- penetration of a person’s genitalia or anus by an object held or manipulated by another person (i.e. a vibrator, deodorant bottle or other hand-held objects).
- touching of a person’s genitalia or anus by another person’s mouth or tongue (i.e. oral sex).

Question 4

In all cases of sexual violation the Crown must prove beyond reasonable doubt that:

Answer 4

• 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 the complainant was consenting, or
• if the offender did believe the complainant was consenting, the grounds for such a belief were not reasonable

Question 5

Therefore any investigation must prove that either:

Answer 5

• the defendant knew they did not have the victim’s consent but acted anyway (the offender’s mens rea), or
• the defendant’s grounds for believing that the victim consented to the act were unreasonable.

Question 6

No legal spousal defence

Answer 6

Section 128(4) makes it clear that 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 7

Anus

Answer 7

The anus is not included within the definition of genitalia, and therefore non-consensual penile penetration of the anus is not rape.

The appropriate charge would be one of sexual violation by unlawful sexual connection under s128(1)(b).

Question 8

Objects manipulated

Answer 8

This provision applies to anything, other than a part of his body, used by the offender to penetrate the complainant’s genitalia or anus - for example, a vibrator, a deodorant bottle or other hand-held objects.

Question 9

Genuine medical purposes

Answer 9

Some medical procedures (such as cervical screening and prostate examination) involve penetration of a patient’s genitalia or anus by a doctor. Provided this is done for genuine medical purposes, such penetration is excluded from the definition of sexual connection.

Note, however, that if a doctor penetrates a patient on the pretence of medical necessity, when it is actually for sexual gratification, it may amount to sexual violation.

Question 9

Mouth or tongue

Answer 9

In the case of oral sexual connection it is not necessary for there to be penetration; any touching of a person’s genitalia or anus with another person’s mouth or tongue is sufficient.

Question 10

Continuation

Answer 10

The definition of sexual connection includes the “continuation” of such acts, capturing situations where sexual activity is started consensually, but consent is later withdrawn.

There is an obligation on a person to stop sexual activity at the point he realises the other person is, or may be, no longer willing - failure to do so may render a previously consensual act unlawful.