SEX Flashcards
Define Sexual Violation
The act of a person who a) rapes another person or b) has unlawful sexual connection with another person
Define Sexual Connection
Connection effected by the introduction into the genetalia or anus of one person, otherwise than 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
connection between the mouth or tongue of one person and a part of another persons genitalia or anus or
the continuation of connection of a kind described above
Proof of penetration may be established by:
- the complainants evidence
- medical examination, including physical injuries and DNA evidence
- the defendants admissions
R v Koroheke (Genitalia)
The genitalia comprise of the reproduction organs interior and exterior… they include vulva and the labia, both interior and exterior, at the opening of the vagina
Define Penis
includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person is male, female or of indeterminate sex)
S127 No presumption because of age
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
Subjective/Obective test for Consent
- the complainant did not consent (subjective)
- the offender did not believe the complainant was consenting (subjective)
- if he did believe she was consenting, the grounds for belief were not reasonable (objective)
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.
R v Gutuama
Under the objective test the Crown must prove that no reasonable person in the accused’s shoes could have thought the complainant was consenting
Sexual Violation By Rape
Section 128(1)(a) Crimes Act 1961
- a person
- rapes
- another person
Sexual Violation By Unlawful Sexual Connection
Section 128(1)(b) Crimes Act 1961
- a person
- has unlawful sexual connection with
- another person
Indecent Assault
Section 135 Crimes Act 1961
- a person
- indecently assaults
- another person
Sexual Connection with a Young Person
Section 134(1) Crimes Act 1961
- a person
- has sexual connection with
- a young person
Indecent Act on a Young Person
Section 134(3) Crimes Act 1961
- a person
- does an indecent act
- on a young person
Indecent Act on a Child
Section 132(3) Crimes Act 1961
- a person
- does an indecent act
- on a child
Sexual Connection with a Child
Section 132(1) Crimes Act 1961
- a person
- has sexual connection with
- a child
Assault with Intent to Commit Sexual Violation
Section 129(2) Crimes Act 1961
- a person
- assaults
- another person
- with intent to commit sexual violation
Incest
Section 130 Crimes Act 1961
- every one who
- has a relationship of parent/child, sibling/half siblings or grandparent/grandchild
- is over 16 years of age
- knows of the relationship
S128A Matters Not Constituting Consent
- not giving protest
- allowing activity due to force/threat or fear of force
- asleep or unconscious
- affected by alcohol or drug
- affected by a physical, mental or intellectual condition
- mistaken identity
- mistaken about nature or quality
R v Koroheke (Invalid Consent)
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 may happen if she doesn’t not give in or cooperate is not true consent.
Define Rape
Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis without person B’s consent and without believing on reasonable grounds that person B consents to the connection.
Attempted Sexual Violation
Section 129(1) Crimes Act 1961
- everyone who
- attempts to commit sexual violation
- of another person
Define Attempts
Section 72 Crimes Act 1961
Everyone who, having intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of attempts, whether in the circumstances it was possible to commit the offence or not
Intent
A deliberate act AND
An intent to produce a result (aim, object or purpose Simester and Brookbanks)
R v Collister (Proving Intent)
Circumstantial evidence from which an offenders intent may be inferred can include:
- offenders actions before during or after
- surrounding circumstances
- nature of the act itself
R v Harpur (Attempt)
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
R v Harpur (Sufficiently Proximate)
Court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. The defendants conduct may be considered in its entirety. Considering how much remains to be done is always relevant, though not determinative.
Define Assault
The act of intentionally applying or attempting to apply force, directly or indirectly, or threaten gin by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has present ability to effect his purpose.
Define Genitalia
Genitalia or genitals include the penis and testes of a male, and the vulva or vagina of a female.
Include surgically constructed or reconstructed organs analogous to naturally occurring male or female genitalia (whether male, female or of indeterminate sex)
R v Cook (Consent)
Consent must be real, genuine or true consent and that it may be conveyed by words or conduct or both.
Define Consent
Is a persons conscious and voluntary agreement to something desired or proposed by another
Cox v R (Consent of a Child)
Although we do not exclude the possibility that a child of ten or eleven may be able to give full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion are rare
Cox v R (Reasonable Belief in Consent)
Save in exceptional and rare circumstances even when she agrees to the act occurring, no reasonable adult would have the grounds for believing that a ten or eleven year old girl has the experience or maturity to understand the nature and significance of the act
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, Immaterial whether:
- the offender does an act on the child
- the child does the act on the offender
- the act is mutual
R v Court
Indecency means conduct that right thinking people will consider an affront to the sexual modesty of the complainant
Defence to S134
- had taken reasonable steps to find out age AND
- believed on reasonable grounds person over 16 AND
- the young person consent
R v Leeson
The definition of indecent assault is an assault accompanied with circumstances of indecency
Sexual Conduct with a Dependant Family Member
S131 Crimes Act 1961
(1) has sexual connection with
(2) attempts to have sexual connection with
(3) indecently assaults
- a dependent family member under 18 years of age
Define Dependant Family Member
- has power or authority over them and is
- a parent, step parent, foster parent, guardian, uncle or aunt
- a parent of the above
- a child of his or her parent or step parent
- spouse or de facto partner of above
- member of the same family, whanau or other culturally recognised family group
*living with the other person as a member of their family - significant role in their upbringing
