Sex Offences

Question 1

Rape

Answer 1

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 ot the connection
AND
(b) without believing on reasonable grounds that Person B consents to the connection

S128(2) CA 1961

Question 2

Sexual connection

Answer 2

(a) connection effected by the introduction into the genitalia or anus of a person, otherwise for a genuine medical purpose 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 persons genitalia or anus or
(c) the continuation of connection of a kind desfibed in paragraph (a) or paragraph (b)

S2 CA 1961

Question 3

Penetration

Answer 3

Introduction and penetration have the same meaning

introduction to the slightest degree is enough to effect a connection

S2(1)(a) Ca 1961

Question 4

proof of penetration

Answer 4

the complainants evidence
medical examination
accused admissions

Question 5

Genitalia

Answer 5

Genitalia includes any surgically constructed or reconstructed organ analogues to a naturally occurring male or female genitalia (whether the person concerned is male, female or of indeterminate sex)

S2 CA 1961

Question 6

Case law related to Genitalia

Answer 6

R v Koroheke

The genitalia comprise the reproductive organs, interior and exterior, they include the vulva and the labia, both interior and exterior at the opening of the vagina

Question 7

Penis

Answer 7

Penis includes any surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female or of indeterminate sex)

S2 CA 1961

Question 8

Consent

Answer 8

Consent is a persons concious and voluntary agreement to something desired or proposed by another

Question 9

Case law related to consent

Answer 9

R v Cox

Consent must be free, full, voluntary and informed, freely and voluntarily given by a person in a position to make a rational judgement

Question 10

Matters that do not constitute consent

Answer 10

• not protesting or offering physical resistance to use of force
• application, threats or fear of force to self or others
• asleep or unconscious
• so affected by drugs or alcohol they cannot consent
• so affected by mental or physical impairment they cannot consent
• mistaken identity
• mistaken as to nature and quality of act

Question 11

Reasonable grounds

Answer 11

The establishing of reasonable grounds is a three step process.

Sunbective test - absence of consent
What was the complainant thinking at the time? Was s/he consenting?

Subjective test - Belief in consent
Is s/he was not consenting did the offender believe the complaint was consenting. What was the offender thinking at the time

Objective test - Reasonable grounds to believe in consent
If the offender believed the complainant was consenting, was that belief reasonable in the circumstances. What would a reasonable person have believed if placed in the same position as the defendant?

Question 12

Case law relating to Reasonable grounds

Answer 12

R v Gutuama

Under the objective test the crown must prove that no reasonable person in the accused shoes could have thought that the complainant was consenting.

Question 13

Person

Answer 13

Gender neutral. Proven by judicial notice or circumstantial evidence.

Question 14

Unlawful sexual connection

Answer 14

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 person B was consenting to the connection

S128(3) CA 1961

Question 15

Sexual Connection

Answer 15

(a) connection effected by the introduction into the genitalia or anus of a person, other than for some genuine medial purpose
(i) a part of the body of another person or
(ii) any object held or manipulated but 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) and (b)

S2 ca 1961

Question 16

Indecent act

Answer 16

an act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values

Question 17

Case law that relates to indecency

Answer 17

R v Court

Indecency means conduct that right thinking people will consider an affront to the sexual modesty of the complainant.

Question 18

if such an act is done with the consent of a child, it is irrelevant whether

Answer 18

the offender does the act on the child
the child does the act of the offender
the act is mutual

Question 19

S132(6)(b) CA 1961

Answer 19

doing an indecent act on a child includes indecently assaulting a child

Question 20

Child

Answer 20

means any person under the age of 12 years

S132(6)(a) CA 1961

Question 21

Case law relating to child/proving age

Answer 21

R v Forrest and Forrest

The best evidence in the circumstances should be adduced by the prosecution in proof of the victims age

Question 22

Proving age

Answer 22

In practice this generally involves producing the victims birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate

Question 23

young person

Answer 23

means any person under the age of 16 years

S134(6)(a) CA 1961