Sex Module Flashcards
Sexual Violation by Rape
S128 CA 1981
A person
Rapes
Another person
Sexual Connection Definition
S2 CA 1961
Sexual Connection means -
(a) Connection effected by the introduction into the genitalia or anus of one person. Otherwise than for genuine medical purposes, of–
(i) A part of the body of another person.
(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 persons genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)
In all cases of sexual violation the Crown must prove beyond reasonable doubt 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 that the complainant was consenting, or
- If the offender did believe that the complainant was consenting, the grounds for such a a belief were not reasonable.
Therefore any investigation must prove:
- The defendant knew they did not have the victims consent but acted anyway (the offenders men’s rea)
- The defendants grounds for believing that the victim consented to the act were unreasonable.
No Legal Spouse Defence
S128(4) makes it clear that a spouse who sexually violates their spouse has no legal defense due to the fact that the coup[le are legally married.
Sexual Violation Defined
S128 Crimes Act 1961
(1) Sexual violation is the act of a person who -
(a) Rapes another person; or
(b) Has unlawful sexual connection with another person.
Slightest Degree of Penetration is Sufficient
S 2 CA 1961
(1)A - For the purposes of paragraph (a) of the definition in subsection (1) of “sexual connection”, introduction to the slightest degree is enough to effect a connection.
Proving Penetration (Triangle of Penetration)
Proof of penetration may be established by:
- The complainants evidence.
- Medical examination, including physical injuries and DNA evidence.
- The defendants admissions.
R v Koroheke
The genitalia comprise the reproduction organs, interior and exterior … they include the vulva and the labia, both interior and exterior, at the opening of the vagina.
No Presumption Because of Age
S127 CA 1961
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
Subjective/Objective Test Crown must Prove (Consent)
The Crown must Prove that:
- The complainant did not consent to the sexual act (subjective test) and
- The offender did not believe that the complainant was consenting (subjective test) or
- If he did believe that she was consenting, the grounds for such a belief were not reasonable.
Consent Definition
Consent is a persons conscious and voluntary agreement to something desired or proposed by another.
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
In R v Herbert the concept of reluctant consent was discussed. 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 threatened force, then the act of sexual connection would not be rape.
Subjective Test - Absence of Consent
Whether or not the complainant was consenting is a subjective test from the complainants point of view, i.e what was the complainant thinking at the time?
The Crown must prove that the complainant was not consenting tot he sexual act at the time that it occurred. It is not for the defendant to prove that he/she was consenting.
Subjective Test - Belief in Consent
If it is established that the complainant was not consenting, the next question is whether or not the defendant believed he/she was consenting at the time. This is purely a subjective test from the defendants point of view, i.e what was the defendant thinking at the time?
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?
If as reasonable person would, in the same circumstances, have believed the complainant was consenting, the jury may well acquit the defendant. If a reasonable person would not have believed he/she was consenting, the jury is more likely to convict.
R v Gutuama
Under the objective test, the Crown must prove that “no reasonable person int he accused shoes could have thought that the complainant was consenting.
Recklessness as to Consent
Recklessness as to whether the complainant is consenting or not is not consistent with having a reasonable belief in consent.
When is Consent Relevant?
As per R v Adams, “the material time when consent and belief in consent, is to be considered is at the time the act actually took place.
S128A CA 1961 - Invalid Consent
FAAILMM
Force
Alcohol or drugs
Asleep or unconscious
Intellectually, mentally or physically impaired.
Lack of resistance/protest
Mistaken Identity
Mistake as to nature or quality
S128A - Lack of Protest or Resistance
A lack of protest or resistance does not mean a person is consenting, even if the lack of consent has not been communicated to the defendant; what is relevant is the defendants state of mind.
S128A - Force, Threat or Fear of Force
Force: Allowing sexual activity does not amount to consent to sexual connection if some degree of force has been used to obtain compliance. Although the act does not specify the degree of force necessary, force that is intended or sufficient to cause bodily harm would normally negate a claim that consent had been given.
Threat: The threat must be a threat to use force against the victim or some other person. Again, the circumstances of the case will establish whether the threat was sufficient to negate the claim of genuine consent.
Fear: The victim mist be afraid that force will be used against them or another person, even if the force was not actually used or threatened.
R v Koroheke (Consent/Fear)
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 co-operate, is not true consent.
Asleep or Unconscious
S128A(3) states in absolute terms that 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 without reference to things said or done before or afterwards.
Therefore even prior agreement to sexual activity that is to occur once the complainant is asleep or unconscious does not constitute consent.
Affected by Alcohol or Drugs
The influence of alcohol and drugs may have an impact on a persons ability to give valid consent, however, consent is not invalid simply because the person is intoxicated. The question is whether they were affected to such an extent that they were incapable of understanding the situation and giving rational or reasoned consent.
Intellectual, mental or physical impairment
Where the validity of a persons consent is in questiuon due to impairment, the issues is whether the impairment was sufficiently severe so as to deprive the complainent opf the capacity to give or withhold consent.
Mistake as to Identity
The complainants consent is nullified if it is based on the mistaken identity of the other person.
The mistake is one made by the person submitting to the sexual connection, not a mistake by the defendant.
Such as, the defendant getting in bed with a drunk female, who mistook the defendant for a male who she previously had sex with.
Mistake as to Nature and Quality of Act
Consent is nullified when he complainant was unaware of the true nature of the physical act to which they were agreeing. Such mistakes are limited to the physical character of the sexual connection.
For example, a 14 year old girl consented to intercourse because she had been led to believe that it was a form of medical treatment.
Rape Defined
Section 128(2)
