SEX Flashcards
s128B Sexual Violation
Everyone commits sexual violation is liable to imprisonment not exceeding 20 years
A person convicted must be sentenced to terms of imprisonment unless the court thinks that person should not be sentenced to terms of imprisonment due to:
Particular circumstances of the person convicted, and
Particular circumstances of the offence and nature of the conduct
s128(1)(a) Sexual Violation by Rape
A Person
Rapes
Another Person
What do you look out for when reading scenarios for Rape?
Ensure you establish penetration of the genitalia by the penis and no valid consent. Age of the victim is irrelevant if there is no consent
s127 No Presumption because of Age
Any person of any age is capable of sexual connection. It is not a defence to say that either parties were too old or too young to have sexual connection
Ingredient definition: ‘A Person’ and ‘Another Person’
Gender neutral (the person’s biological gender is not relevant).
A person accepted by judicial notice or proved by circumstantial evidence
Ingredient definition: ‘Rapes’
As defined by s128(2) CA 1961, sexual violation by rape is effected by the penetration of the victims genitalia by the defendants penis without the victims consent or without believing on reasonable grounds that the victim is consenting
Define penetration
As defined in s2 CA 1961, any degree of penetration no matter how slight or fleeting, is sufficient
How do you prove penetration?
The complainant’s evidence
Medical examination including physical injuries and DNA evidence
The defendant’s admissions
R v N (penetration)
The offence is sufficiently proved by penetration of the vulva by the penis, proof of penetration of the vagina is not required
Define genitalia
The genitalia include the penis and testicles of a male and the vulva and vagina of a female. As defined in s2 CA 1961, it includes surgically constructed or reconstructed organ analogous (gender reassignment surgery) to naturally occurring male or female genitalia (whether the person concerned is a male, female or of indeterminate sex)
R v Koroheke (genitalia)
Genitalia comprise of the reproductive organs, internal and external, and includes the vulva and labia, both internal and external, at the opening of the vagina
Define Penis
As defined in s2 CA 1961, the penis forms part of the male genitalia and includes surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female or of indeterminate sex)
Define Consent
Consent is a persons conscious and voluntary agreement to something desired or proposed by another
R v Cox (consent)
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 Koroheke (consent)
Five Mongrel Mob members abducted and brutally violated a 15 year old girl. Their defence was she consented. The girl had only done what she was told because she was frightened.
it is important to distinguish between consent that is freely given, rather than submission to something that is unwanted but unavoidable
R v Guatama (consent, OBJECTIVE)
No reasonable person in the accused’s shoes could have thought there was consent
What must the crown prove beyond reasonable doubt? (the mens rea element)
There was an intentional act by the offender involving sexual connection with the complainant, and
The complainant did not consent to the sexual act (SUBJECTIVE), and
The offender did not believe the complainant was consenting (SUBJECTIVE, the offender’s mens rea), OR
The offender did believe the complainant was consenting but grounds for a belief were not reasonable (OBJECTIVE)
What are examples of invalid consent under s128A?
(1) Lack of protest or resistance
(2) Force, threat or fear of force
(3) Asleep or unconscious
(4) Affected by alcohol or drugs
(5) Intellectual, mental or physical impairment
(6) Mistake as to ID
(7) Mistake as to nature and quality of act
Under s128A what does ‘allows’ mean?
Acquiesces (to accept something reluctantly) or submits to or participates in sexual activity
What is lack of protest or resistance?
Does not mean the complainant is consenting, what is relevant is their state of mind. The defendant may have believed that because of the lack of protest or resistance she was consenting, but was that belief reasonable?
What is force, threat or fear of force?
(relates to consent in R v Koroheke)
It is not consent if:
some degree of force, or
the threat to use force, or
the fear that force would be used against them or another person,
was used to obtain compliance
What is the degree of force necessary to negate consent?
Force that is intended or sufficient to cause bodily harm. A lesser degree of force would be accepted if it caused the victim to submit or not put up a fight
What is asleep or unconscious?
Sexual activity while the complainant is asleep or unconscious is non-consensual, based on the fact that the relevant time for consent is the time of the sexual activity. Prior agreement before the complainant was asleep or unconscious does not constitute consent.
R v Adams (When is consent relevant?)
The material time when consent, and belief in consent, is to be considered is at the time the act actually took place.
What is affected by alcohol or drugs?
The influence of alcohol or drugs can impact a person’s ability to give valid consent. Were they incapable of understanding the situation to give rational or reasoned consent
R v Isherwood (relates to Alcohol or drugs)
The complainant was incapable of giving true consent after her drink was spiked and she was given drugs by the two defendants before submitting to sexual activity.
The crown held that ‘proof that the influence of liquor or drugs has had a disinhibiting effect on the mind of the complainant is not necessarily incompatible with consent. It is all a question of degree’. The complainant has to be able to understand their situation and be capable of making up their mind when agreeing to sexual acts
R v Kim (relates to asleep, unconscious, alcohol or drugs)
If the complainant is asleep, unconscious, or so affected by alcohol or drugs they may have very little or no recollection of the events and will not be in a position to say whether they consented or not. As such it is not essential that there be evidence they did not consent
What is intellectual, mental or physical impairment?
Does the impairment deprive the complainant of the capacity to give or withhold consent. If the threshold for sexual violation has not been met, the defendant should be charged under s138, Sexual Exploitation of a Person with Significant Impairment
What is mistake as to identity?
The complainant’s consent is void if it is based on the mistaken identity of the other person. If a man takes advantage of a female mistaking his identity and has sexual intercourse with her, then he is liable for a charge of sexual violation by rape.
The mistake as to identity is to be made by the complainant, not by the defendant
R v Murphy (relates to mistake as to ID)
The defendant got into bed next to a drunk sleeping woman who had consensual sex earlier. He initiated sexual activity with the woman, who participated believing it was the original man. Murphy was convicted of rape after taking advantage of her mistake as to his identity
What is mistake as to nature and quality of act?
Consent is void if the complainant was unaware of the true nature of the act to which they were agreeing. If the complainant agrees to an act other than intercourse but intercourse takes place, they cannot be said to have given their genuine consent
The mistake as to the nature and quality of the act is made by the complainant, not the defendant
R v Flattery (Mistake as to nature and quality of act)
A 14 year old girl consented to intercourse because she had been led to believe it was a form of medical treatment
R v Williams (Mistake as to nature and quality of act)
A 16 year old consented to what she believed was a medical procedure to improve her singing voice. The church choirmaster was convicted of rape as the girl had not consented to sex
s128(1)(b) Sexual Violation by Unlawful Sexual Connection
A Person
Has Unlawful Sexual Connection with
Another Person
Ingredient definition: ‘Sexual Connection’
As defined in s2 CA 1961, sexual connection is the introduction, into the genitalia or anus of one person, of:
(a) A part of the body of another person, or
An item held or manipulated by another person, or
(b) The mouth or tongue of another person, or
The continuation of a connection described above in (a) or (b), and
Excludes genuine medical purposes
What makes sexual connection unlawful?
Establishing whether sexual connection was unlawful involves the subjective/objective test in relation to consent.
The complainant did not consent to the sexual act (SUBJECTIVE), and
The offender did not believe the complainant was consenting (SUBJECTIVE, the offender’s mens rea), OR
The offender did believe the complainant was consenting but grounds for a belief were not reasonable (OBJECTIVE)
R v A (Who penetrated who)
Under s128(1)(b) the roles are not specified in terms of who is penetrated and who does the penetrating (sometimes it is the offender who is penetrated by the complainant)
A father forced his 14 year old son to have sexual intercourse with his stepmother against his will. She was charged with unlawful sexual connection and the father as a party.
R v Herbert (Reluctant consent)
True consent may be given reluctantly or hesitantly and regretted afterwards. If consent is given without fear, threats or actual force, then the act of sexual connection would not be rape
What is the subjective test from the complainant’s point of view?
What was the complainant thinking at the time? The crown must prove that the complainant was not consenting to the sexual act (absence of consent). It is not for the defence to prove that she was
What is the subjective test from the defendant’s point of view?
What was the defendant thinking at the time?
If the complainant was not consenting, then did the defendant believe she was consenting at the time (belief in consent). If the defendant did, then the objective test must be applied to determine the grounds for that belief
What is the objective test from the defendant’s point of view?
What would a reasonable person have believed if placed in the same position as the defendant? If a reasonable person believed the complainant was consenting then the jury may acquit the defendant, if not then the jury is likely to convict
R v Clarke (Relates to the objective test)
The defendant was one of three men who raped a 16 year old at a party. He took her lack of resistance as consent, blaming his alcohol consumption for his lack of judgement. He said that what may appear unreasonable to a sober person may seem reasonable to a person under the influence of alcohol. The court rejected that argument saying that reasonable should not be interpreted to ‘reasonable in the circumstances as the accused believed them to be’
What is the difference between rape and unlawful sexual connection?
Rape involves the non-consensual penetration of the complainant’s genitalia by the offender’s penis
Unlawful sexual connection includes any form of non-consensual penetration or oral connection with a person’s genitalia or anus
Define anus
The anus is not included within the definition of genitalia. Non-consensual penetration of the anus by the penis is not rape, it is sexual violation of unlawful sexual connection
Define objects held/ manipulated
Anything held by the offender, other than a part of his body, to penetrate the complainants genitalia or anus
What is genuine medical purposes?
A genuine medical purpose is a cervical screening or prostate exam and is excluded from the definition of sexual connection. However, if a doctor penetrates a patient on a medical pretence but it is actually for sexual gratification, then this may amount to sexual violation
What is mouth or tongue?
It is not necessary for there to be penetration, any touching of the person’s genitalia or anus with another person’s mouth or tongue is sufficient
Define continuation
This is when sexual activity had started consensually but the consent is later withdrawn. A person is obligated to stop the sexual activity at the point they realise the other person is no longer a willing participant, failure to do so will render the act unlawful
R v Kaitamaki (relating to continuation)
A man broke into a woman’s house and raped her twice. He noticed during the second act that she was not consenting but continued regardless. The court held that after he penetrated her, realised she was not consenting or had never consented, but continues, then the act becomes rape
How is attempt and assault with intent distinguished?
An attempt to commit sexual violation does not necessarily involve an assault
An assault with intent to commit sexual violation may not be sufficiently proximate to the full offence to constitute an attempt
s129(1) Attempted Sexual Violation
Liable to 10 years imprisonment
To be found guilty, a person:
Intended to commit an offence, and
Had taken a real and substantial step towards achieving it
R v L (mens rea in attempted sexual violation)
In attempted sexual violation the offender is unsuccessful in effecting the sexual connection. That is the only difference to sexual violation. The mens rea is still the same.
A female grabbed her 15 year old nephews penis and tried to put it in her vagina claiming he had consented.
Establishing that she was reckless as to whether he was consenting satisfies the requirements that any belief in the consent was not held on reasonable grounds
How are you guilty of an attempt (s72)?
The defendant must have progressed past the stage of preparation and started a process intended to lead to the full commission of the offence
R v Harpur (attempt)
The defendant detailed explicit sex acts he wanted to perform on a 4 year old girl. He showed up at the agreed time and place and found out the girl didn’t exist and it was a ‘Police sting’. It was concluded that his conduct was sufficiently proximate to the full offence and there was evidence of his intent.
An attempt includes an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime
What is sufficiently proximate?
The defendant’s conduct at the relevant time, in conjunction with his intent based on the circumstances, and any steps taken leading up to that point
R v Harpur (sufficiently proximate)
The court may have regard to the conduct viewed up to the point the conduct stops, the defendant’s conduct may be considered in its entirety. Considering how much remains to be done is relevant but not determinative
s129(2) Assault with Intent to Commit Sexual Violation
A Person
Assaults
Another Person
With Intent to Commit Sexual Violation
What does s129(2) require? (two elements to prove a charge)
Liable to 10 years imprisonment
Requires proof of an assault (does not need to be of an indecent nature provided it is done with intent and purpose of committing sexual violation)
(1) Assaulted the victim, and
(2) Intended to commit sexual violation