Sexual Assault Offences - Basics Flashcards
Section 128
What are comprises sexual violation as defined in Section 128 of the Crimes Act?
Section 128 of the Crimes Act
…
(2) Rape (Sexual Violation)
(3) Unlawful Sexual Connection
What section and provisions govern sexual assault offences in the Crimes Act?
Section 128 (1) Sexual violation is defined as either rape or unlawful sexual connection
What are the statutory elements of rape listed in Section 128, ss (2)?
Section 128 (2) Rape is defined as the introduction of person A' penis to the genitalia of person B' if;
(A) person B does not consent
(B) Person A has no reasonable grounds to believe that consent has been given
What are the statutory elements of unlawful sexual connection listed in Section 128, ss (3)
Framework is similar to rape.
Section 128
(3) Unlawful sexual connection occurs if person A has sexual connection with person B if:
(A) Person B does not consent
(B) Person A has no reasonable grounds to believe that consent was given
What defines sexual connection?
Sexual connection is legally defined as the introduction to Person B’ genitalia or anus, for purposes other than genuine medical interests, by:
(a)
(i) A body part of person A
(ii) An object held and manipulated by Person A
(b) Connection between the mouth or tongue of person A to Person B’ genitalia or anus;
(c) Continuation of acts listed in (i) and (ii).
Important to note that; continuation is where in instances consent is withdrawn or understood to be withdrawn.
What is the legal definition of genitalia?
Genitalia = Vagina is understood according to its medical interpretation; from the vulva to the uterus. Also incorporates reconstituted vagina (transgender)
What is the continuation doctrine as it relates to sexual assault offences?
Continuation of sexual connection after consent has been withdrawn, or if consent was not given at all, constitutes rape.
It begins with penetration but is not limited to that act, it is the entirety of sexual intercourse and only ends with withdrawal of the penis.
Non-consensual sexual connection is therefore a continuing act.
What is the actus reus and mens rea of rape (Section 128(2))?
Actus reus
- Introduction of Person B’ penis to the genitalia of Person A
- Person A did not in fact consent
Mens rea
- Person B was aware that Person A did not consent
- Person B had no reasonable grounds to believe that consent was given
What is the actus reus and mens rea of unlawful sexual connection (Section 128(3))?
Similar framework to rape
Actus reus
- Person B engages in sexual connection with Person A
- Person A does not in fact consent
Mens rea
- Person B is aware that Person A does not consent
- Person B has no reasonable grounds to believe that consent was given
What are the facts and principles of R v Kaitamaki (continuation)?
Case in where the defendant argued that he had not committed rape as he thought that she consented to the initial act of penetration. Argument that rape constitutes penetration only, attempt to limit the scope of the act.
Court rejected this narrow approach and ruled that rape is not merely the act of penetration but the whole of sexual intercourse, making it a continuing act.
Defendant was convicted on those grounds as he continued to rape her after he learnt that (supposed) consent had been withdrawn. Narrow scope argument rejected.
Why was genitalia substituted for Vagina?
Genitalia was adopted to reflect that sexual connection is not purely limited to penetration but any connection.
Any non-consensual touching of the genitalia, however slight and brief, constitutes sexual connection.
