Sex offences case law Flashcards
Genitalia (1)
R v Koroheke 28/11/01, CA189/01
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.
Therefore, if a part of the offender’s body or an object held or manipulated by him is between the complainant’s labia to the slightest degree, it will constitute penetration for the purposes of sexual violation.
Continuation
R v Kaitamaki
A man broke into a young woman’s house and raped her twice, claiming it was only during the second act of intercourse that he became aware she was not consenting. He admitted however that he had continued regardless.
The Court held that after he had penetrated the woman and then realises that she is not consenting (or has never consented) but continues than that act of intercourse becomes rape.
Consent (1)
R v Cox 7/11/96, CA213/96
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
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 or threatened force, then the act of sexual connection would not be rape.
Objective test - reasonable grounds for belief in consent
R v Gutuama 13/12/01, CA275/01
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.
In R v Gutuama a 27 year old man was charged with raping a 14 year old girl following a period of consensual sexual activity. He claimed he had reasonable grounds for believing she was still consenting, prompting the Court of Appeal to clarify the objective test for reasonableness.
R v Clarke
The defendant was one of three men who raped a 16 year old girl at a party. He claimed he had misinterpreted the girl’s lack of resistance as a sign of consent because the consumption of alcohol had affected his judgment. He argued that what may appear unreasonable to a sober person may well appear reasonable to a person under the influence of alcohol.
The Court of Appeal rejected that argument, ruling out a defendant’s personal characteristics as relevant factors in a purely objective test. The term reasonable should not be interpreted as reasonable in the circumstances as the accused believed them to be or in some other way bringing in a subjective approach to justify the accused’s belief.
When is consent relevant?
R v Adams
In Court it was discussed this matter and found that the material time when consent, and belief in consent, is to be considered is at the time the act actually took place.
The complainant’s behaviour and attitude before or after the act itself may be relevant to that issue, but it is not decisive.
The real point is whether there was true consent, or a reasonably based belief in consent, at the time the act took place.
Force, threat or fear of force
R v Koroheke 28/11/01, CA189/01
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.
In R v Koroheke a 15 year old girl was abducted and brutally violated by five Mongrel Mob members who barked like dogs and spat on her as they violated her orally and digitally and inserted objects into her over the course of two and a half hours. Their defence was that the girl consented.
Although she had not protested and had done as she was told, the girl’s evidence was that she had only done so because she was frightened.
Affected by alcohol or drugs (1)
R v Isherwood
The female complainant submitted to sexual activity with two men who had spiked her drink and administered drugs to her intravenously. As a result “she did what she was told and felt unable to resist”.
The Court held that “proof that the influence of liquor or drugs has had a dis-inhibiting effect on the mind of a complainant is not necessarily incompatible with consent. It is all a question of degree.”
In this case, however, the Court accepted that the complainant was incapable of giving true consent, and the two defendants were convicted of multiple counts of sexual violation.
The Court also reaffirmed, that if consent is to be valid, the complainant has to be able understand their situation and be capable of making up their mind when agreeing to sexual acts.
Affected by alcohol or drugs (2)
R v Kim
The Court held that s128A Allowing sexual activity does not amount to consent in some circumstances,
(3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.
or
(4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
were designed to address cases where the complainant is asleep, unconscious or so affected by affected by alcohol or drugs that they could not give a valid consent. In such cases it will often (if not usually) be the case that the complainant will have very little or no recollection of the events and will not be in a position to say whether they consented or not. As such it is not essential where these subsections apply that there be evidence the complainant did not consent.
Mistake as to identity
R v Murphy
The defendant got into his bed beside a drunk, sleeping woman who had earlier had consensual sex with another male. Murphy initiated sexual activity with the woman who participated willingly believing it was still the original male. Murphy was convicted of rape on the basis that he had taken advantage of her mistake as to his identity.
Mistake as to nature and quality of act (1)
R v Flattery
A 14-year-old girl consented to intercourse because she had been led to believe that it was a form of medical treatment.
Mistake as to nature and quality of act (2)
R v Williams
A church choirmaster had sexual connection with a 16 year old girl on the pretence that he was performing a medical procedure to improve her singing voice.
The Court of Appeal upheld Williams’ conviction for rape as the girl had only consented to what she had mistakenly believed was a medical procedure; she had not consented to sex.
Note that the mistake is one made by the person submitting to the sexual connection, not a mistake by the defendant.
Person B - the complainant ….
R v A
A 14-year-old boy was forced by his father on fifteen occasions to have sexual intercourse with his step-mother against his will. The woman was charged with sexually violating the boy by having unlawful sexual connection with him; the father was charged as a party.
The Court of Appeal held that the definition of unlawful sexual connection “is couched in neutral language … as to which party is the penetrator and which the penetrated person.”
Therefore the fact that it was the complainant’s body part penetrating the accused’s genitalia does not prevent the definition of “sexual connection” from being fulfilled.
Proving intent
R v Collister
two Police officers were charged with demanding with menaces after causing a man to believe he would be arrested for soliciting homosexual acts unless he paid them money. Although no express demand for money was made, it was held that the defendants’ intent could be inferred from the circumstances.
The onus is generally on the prosecution to prove an offender’s intent beyond reasonable doubt.
While an offender’s admissions as to their intent are potentially good evidence, it is good practice to support these with circumstantial evidence from which their intent can also be inferred.
Circumstantial evidence from which an offender’s intent may be inferred can include:
- the offender’s actions and words before, during and after the event
- the surrounding circumstances
- the nature of the act itself.
Mens rea in attempted sexual violation
R v L
This case involved a female who grabbed her 15-year-old nephew’s penis and tried to put it in her vagina, claiming she had believed he was consenting.
With attempted sexual violation the Crown must prove that at the time the defendant’s conduct he:
- intended to have sexual connection with the complainant, and
- the complainant did not consent to the intended sexual connection; and
- the defendant did not believe on reasonable grounds that the complainant was consenting
Establishing that the defendant was reckless as to whether or not the complainant was consenting satisfies the requirement that any belief in consent was not held on reasonable grounds.
