sex definitions Flashcards
What must be proved in all cases of sexual violation?
- That 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 he did believe she was consenting, the grounds for such a belief were not reasonable.
Person
Proven by Judicial notice or circumstantial evidence.
Rape
CA.61 S.128(2)
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-
a) without person B’s consent to the connection; and
b) without believing on RG that person B consents to the connection.
Sexual Connection
CA.61 S.2
a) connection effected by the introduction into the genitalia or anus of one person (otherwise than for genuine medical purposes) of
- a part of the body of another person
- an object manipulated by another person
b) connection between the mouth or tongue of one person and another person’s genitalia or anus
c) the continuation of connection in a kind described
Another person
It is a gender neutral offence; given the wide statutory definition of genitalia, the person’s biological gender is not relevant.
Unlawful Sexual Connection CA.61 S128(3)
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 AND
b) without believing on reasonable grounds that B consents to the connection
Penetration
Section 2 (1A). CA 61
Introduction to the slightest degree is enough to effect a connection.
Proof of penetration may be established by the complainant’s evidence, medical examination, defendant’s admissions.
Proof of penetration is required, 3 ways of proving:
- Complainant’s evidence
- Medical exam
- Accused’s admissions
Genitalia
R V KOROHEKE
The genetalia comprise the reproductive organs, interior and exterior … they include the vulva and labia, both interior and exterior at the opening of the vagina.
Penis S2 CA61:
Includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female or of indeterminate sex).
Consent
A person’s conscious and voluntary agreement to something desired or proposed by another.
The Crown must prove:
- That there was an intentional act by the offender involving sexual connection with the complainant, and;
- The complainant did not consent to the sexual act (a subjective test), and;
- The offender did not believe the complainant was consenting (a subjective test), or;
- If he did believe she was consenting, the grounds for such a belief were not reasonable (an objective test).
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.
Eight Matters that Do Not Constitute Consent CA.61 S.128A
- Lack of protest or resistence
- Force, threat or fear of force
- Asleep or unconscious
- Affected by alcohol or drugs
- Intellectual, mental or physical impairment
- Mistake as to identity
- Mistake as to nature and quality of act
- Sexual activity to which S128A applies and indecent assault.
Penis
Includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female or of indeterminate sex).
Reluctant consent
R v Herbert - The court held that a 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.
Describe the subjective and objective test regarding consent
The subjective test - 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 she was consenting.
The objective test - reasonable grounds for belief in consent
The objective test is: what would a reasonable person have believed if placed in the same position as the defendant?
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R v Gutuama - Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that the complainant was consenting.”
