Sex Flashcards
Sexual violation by rape
Section 128 (1)(a), CA61
Elements
– a person
– rapes
– another person
Sexual violation by unlawful sexual connection
Section 128(1)(b)
Elements
– a person
– has unlawful sexual connection
- With another person
Assault with intent to commit sexual violation
(Not a liability)
Section 129(2)
Elements
– a person
– assaults
– another person
– within intent to commit sexual violation of the other person
Sexual conduct with a child under 12
Section 132, CA 61
- A person
1) has sexual connection with a child
2) attempts to have sexual connection with a child
3) do an indecent act on a child child
Child-under11 years old
Sexual conduct with a young person under 16
Section 134, CA 61
– a person
1)Has sexual connection with a young person
2)Attempts to have sexual connection with a young person
3) Does an decent act on a young person
Indecent assault
Section 135 crimes act 61
-A person
-Indecently Assaults
-Another person
What must be proved for sexual violation
- There was intentional act by the offender involving sexual connection AND
- The complainant did not consent to the act AND
- The offender did not believe the complainant was consenting OR
- He did believe she was consenting, the grounds for such a belief were not reasonable
Sexual violation definition
The act of a person who
a) rapes another person OR b
b) has unlawful sexual connection with another person
Sexual connection definition
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 genitalia or anus or
c) the continuation of connection of the kind described in paragraph a or b
Introduction into/ penetrating
Introduction into - sexual connection
Penetration- rape
In practice there is no difference
Penetration
S2 CA: Slightest degree is enough to effect a connection, no matter how slight or fleeting.
Proving penetration
Penetration triangle
-complainants evidence
-Medical examination (physical injuries and DNA evidence)
-the defendants admissions
Genitalia
(And case law)
… included surgical contracted or reconstructed organ analogous to naturally occurring male or female genitalia.
Male- penis and testicles
Female - vagina and vulva
R v Koroheke
The genitalia comprise the reproduction organs, interior or exterior, they include the vulva and labia, both interior and exterior, and the opening of the vagina
Penis
S2, CA61, Penis includes surgically constructed or reconstructed organ analogous to a naturally occurring penis
Anus
Anus is not genitalia therefore penile penetration does not constitute sexual violation by rape but is sexual violation by unlawful sexual connection
No presumption of age- sexual connection
S127 - there is no presumption of law that a person is incapable is sexual connection because of his or her age
Therefore no a defence to a sex related charge to say that either of parties was too young/old to have sexual connection
What makes sexual connection unlawful?
What must be proved by crown
Crown must prove
- the complainant did not consent to the sexual act (subjective) AND
-The offender did not believe the complainant was consenting (subjective) OR
-if he did believe she was consenting, the grounds for such a belief were not reasonable (objective)
Consent
Definition and case law
… is a persons conscious and voluntary agreement to something desired Or proposed by another
R v Cook - to be effective consent must be real genuine or true consent, may be conveyed by words or conduct or both
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
Reluctant consent
True consent may be given reluctantly or hesitantly and may be regretted afterwards but if the consent is given even in such a manner provided it is without fear of the application of force or the result of actual or threatened force, then the act of sexual connection would not be rape
Subjective consent
Absence of consent - what was the complainant thinking at the time.
The crown must prove that the complainant was not consenting to the sexual act at the time it occurred. It is not for the defendant to prove that the complainant was consenting
Objective test
Caselaw consent
What would a reasonable person hippies if placed in the same position as the defendant?
Case law R v Guatuama
Under the objective test the crown must prove that “no reasonable person in the accused shoes could have thought that the complainant was consenting “
*recklessness as to consent
Being reckless as to whether the complainant is consenting is not consistent with having a reasonable belief in consent
When is consent relevant?
The material time when consent and belief and consent is to be considered as at the time the act actually took place
Matters not constituting consent
S128A
Allowing sexual activity does not amount to consent in some circumstances:
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 identity
7) mistake as to nature and quality of act
8) sexual activity
128A force, threat or fear of force
Caselaw
R v koroheke
It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable for example submission by a woman because she is frightened of what might happen if she does not give in or cooperate is not true consent
Sexual violation by rape definition
Person a rapes person b if person a has sexual connection with person b effected by the penetration of person bs genitalia by person a’s penis
a) without person b’s consent to the connection
b) without believing in reasonable grounds that person b consents to the connection
Sexual violation by sexual connection defined
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
b) without believing on reasonable grounds that person b consents to the connection
S128 (1) (b)
attempted sexual violation offence
Section 129
(1) attempted sexual violation
Must have intent to commit the full offence AND
take a real and substantial step towards achieving that aim
R v Harpur
Attempts Caselaw
The court may have regard to the conduct viewed cumulatively up to the point where the conduct in question stops, the defendants conduct maybe considered in its entirety. Considering how much remains to be done is always relevant though not determinative
Assault with intent to commit sexual violation
129(2)
Everyone who assaults another person with intent to commit sexual violation of the other person is liable to imprisonment for a term not exceeding 10 years
Mens rea to be proved: at the time the defendant assaulted the complainant he…
1. Intended to have sexual connection with the complainant AND
2. The complainant did not consent to the sexual connection
3. The defendant did not believe in reasonable grounds that the complainant was consenting
Sexual conduct with a child under 12 (consent)
132(5)- it is not a defence to a charge under this section that the child consented to
Child —11 and under
Consenting is more than compliance and they must have a true understanding of the act to consent for 128
Consent of a child
Case law
Cox v R
Although we do not exclude the possibility that a child of 10 or 11 may be able to give a full voluntary free informed consent to 6 the circumstances that were justify that conclusion would be exceptional if not rear. A 10 or 11 year-old child may know what sexual intercourse is, She may indicate her agreement
Cox v R c regarding reasonable belief in consent of a child
Save an exceptional and rear circumstances even where she indicates an agreement to the act occurring no reasonable adult would have grounds for believing that a 10 or 11-year-old girl has the experience or maturity to understand the nature and significance of the act
Proof of age
Caselaw
Where age is an ingredient of a charge prosecution must prove the compliance age at the time of the alleged offence using the best evidence available to do so
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age
Indecent act on a child
132(3) everyone who does in a decent act and a child is liable to imprisonment for a term not exceeding 10 years
It is a material weather
– the offender does the act on the child
– the child does the act on the offender
– the act mutual
Indency
And Caselaw
An Act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values
R v Court
Indecency means conduct that right thinking people will consider an affront to the sexual modesty of the complainant
Indecency objective test caselaw
R v Dunn
Indecency must be judged in light of the time place in circumstances. it must be something more than trifling and be sufficient to warrant the sanction of the law 
Defence to charge under section 134
Sexual conduct with a young person under 16
Section 134A
- They had taken reasonable stamps to ascertain that the young person was at least 16 AND
- They have believed unreasonable grounds that the young person was at least 16 AND
- The young person consented 
Indecent assault
Caselaw definition
What must prosecution prove?
R v Leeson
The definition of indecent assault is an assault accompanied with circumstances of indecency
The prosecution must prove
– the defendant intentionally assaulted the complainant
– the circumstances accompanying the assault were indecent
– the defendant intended the conduct that a reasonable person would find indecent
If consent is also raised the prosecution must prove beyond reasonable doubt
– the complainant did not consent to the assault AND
– The defendant did not honestly believe the complainant was consenting
