Sexual Crimes

Question 1

List the Act, Section, Penalty and Ingredients for Sexual Violation by Rape.

Answer 1

Sexual Violation By Rape
CA1961 S128(1)(a) 

Penalty: 20 Years.

A person / Rapes / Another person.

Question 2

List the Act, Section, Penalty and Ingredients for Sexual Violation by Unlawful Sexual Connection.

Answer 2

Sexual Violation by Unlawful Sexual Connection
CA1961 S128(1)(b)

Penalty: 20 Years.

A person / has unlawful sexual connection / with another person.

Question 3

List the Act, Section, Penalty and Ingredients for Assault with Intent to Commit Sexual Violation.

Answer 3

Assault with Intent to Commit Sexual Violation
CA1961 S129(2)

Penalty: 10 years

A person / assaults another person / with intent to commit sexual violation / of the other person

Question 4

List the Act, Section, Penalty and Ingredients for Sexual Conduct with Dependant Family Member.

Answer 4

Sexual Conduct with Dependant Family Member
CA1961 S131(1) 

Penalty: 7 Years

Everyone / has sexual connection / with a dependant family member under 18 years

Question 5

List the Act, Section, Penalty and Ingredients for Sexual Conduct with a Child Under 12 (Sexual Connection).

Answer 5

Sexual Conduct with a Child Under 12
CA1961 S132(1)

Penalty: 14 Years

Everyone / has sexual connection / with a child.

Question 6

List the Act, Section, Penalty and Ingredients for Sexual Conduct with a Child Under 12 (Indecent Act).

Answer 6

Sexual Conduct with a Child Under 12
CA1961 S132(3)

Penalty: 10 Years

Everyone / does an indecent act / on a child

Question 7

List the Act, Section, Penalty and Ingredients for Sexual Conduct with a Young Person Under 16 (Sexual Connection).

Answer 7

Sexual Conduct with a Young Person Under 16
CA1961 S134(1)

Penalty: 10 Years

Everyone / has sexual connection / with a young person.

Question 8

List the Act, Section, Penalty and Ingredients for Sexual Conduct with a Young Person Under 16 (Indecent Act)

Answer 8

Sexual Conduct with a Young Person Under 16
CA1961 S134(3)

Penalty: 7 Years

Everyone / does an indecent act /on a young person

Question 9

List the Act, Section, Penalty and Ingredients for Indecent Assault.

Answer 9

Indecent Assault
CA1961 S135

Penalty: 7 Years

Everyone who / indecently assaults / another person

Question 10

What are the ‘must know’ case laws for sexual offending?

Answer 10

R v Koroheke
R v Cox
R v Gutuama
R v Mohan
R v Waaka
R v Harpur
R v Forrest and Forrest
R v Court
R v Leeson

Question 11

What are the ‘relevant’ case laws for sexual offending?

Answer 11

R v N
R v Kaitamaki
R v Cook
R v Herbert
R v Clarke
R v Khan
R v Adams
R v Isherwood
R v Kim
R v Williams
R v A 
R v Wentworth
R v Collister
R v L
Police v Wylie
Cox v R
R v Clancy
R v Dunn
R v Norris

Question 12

What 4 things must the prosecution prove in cases of sexual violation?

Answer 12

1. There was an intentional act by the offender involving sexual connection with the complainant, AND
2. The complainant did not consent to the sexual act AND
3. The offender did not believe the complainant was consenting OR
4. If he did believe she was consenting, the grounds for such a belief were not reasonable

Question 13

What is the defintion of ‘sexual connection’ and where is it found?

Answer 13

S2 CA1961
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, OR
(ii) an object held or manipulated by another person, OR
(b) connection between the mouth and tongue of one person and a part of another person’s genitalia or anus, OR
(c) the continuation of connection of a kind described in paragraph (a) or (b).

Question 14

What is the difference between ‘introduction into’ and ‘penetration’?

Answer 14

There is no difference - ‘introduction into’ is found in the definition of sexual connection and ‘penetration’ is found in the definition of rape, but in practice there is no difference and it is not necessary to differentiate between the two terms.

Question 15

What does S2 CA1961 state regarding the degree of penetration required to effect a connection?

Answer 15

For the purposes of paragraph (a) of the definition of subsection (1) of “sexual connection”, introduction tot he slightest degree is enough to effect a connection.

While penetration of the genitalia or anus must be proved, the extent of penetration is not relevant, any degree of penetration, no matter how slight or fleeting, is sufficient.

Question 16

What are the three ways in which penetration can be proved?

Answer 16

1. The complainants evidence
2. Medical examination (DNA/Injuries)
3. The defendant’s admissions

Question 17

What is the definition of ‘genitalia’ and where is it found?

Answer 17

S2 CA1961
Genitalia 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.

Question 18

What does R v Koroheke state regarding genitalia?

Answer 18

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.

Question 19

What does R v N state regarding penetration?

Answer 19

The offence ‘is sufficiently proved by penetration of the vulva by the penis… proof of penetration of the vagina is not required’.

Question 20

What is the definition of ‘penis’ and where is it found?

Answer 20

S2 CA1961
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.

Question 21

What is ‘continuation’?

Answer 21

The definition of sexual connection includes the ‘continuation’ of such acts, capturing situations where sexual activity is commenced consensually, but consent is later withdrawn.

Question 22

What does R v Kaitamaki state regarding consent?

(A man broke into a young woman’s house and raped her twice, claiming that it was only during the second act of intercourse that he became aware that she was not consenting, but he admitted that he had continued regardless).

Answer 22

If, after he has penetrated a woman, a man realises that she is not consenting (or has never consented) but he continues that act of intercourse then becomes rape.

Question 23

Is it a defence to a sex related charge to say that either or the parties was too old or too young to have a sexual connection? Where is this specified in legislation?

Answer 23

S127 CA1961

There is no presumption of law that a person is incapable of sexual connection because of his or her age.

Question 24

What are the three tests the Crown must prove to establish whether a sexual connection was unlawful?

Answer 24

1. The complainant did not consent to the sexual act (Subjective Test 1)
2. The offender did not believe the complainant was consenting (Subjective Test 2)
3. If he/she did believe they were consenting, the grounds for such a belief were not reasonable (Objective Test)

Question 25

What is ‘consent’?

Answer 25

‘Consent’ is a person’s conscious and voluntary agreement to something desired or proposed by another.

Question 26

What does R v Cox state regarding consent?

Answer 26

Consent must be full, voluntary, free and informed… Freely and voluntarily given by a person in a position to form a rational judgement.

Question 27

What does R v Cook state regarding consent?

Answer 27

To be effective, consent must be ‘real, genuine or true consent, and may be conveyed by words or conduct or both’.

Question 28

What does R v Herbert state regarding reluctant consent?

Answer 28

A true consent may be given reluctantly or hesitantly and might be regretted afterwards, but if 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.

Question 29

What is Subjective Test 1 with regard to consent?

Answer 29

Whether or not the complainant was consenting, from the complainant’s point of view - 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.

Question 30

What is Subjective Test 2 with regard to consent?

Answer 30

Whether or not the defendant believed the complainant was consenting at the time of the sexual act - what was the defendant thinking?

Question 31

What is the Objective Test with regard to consent?

Answer 31

What would a reasonable person think if they were placed in the same position as the defendant? If a reasonable person would, in the same circumstances, have believed the complainant was consenting, the jury may well acquit the defendant.

Question 32

What does R v Gutuama state regarding the objective test for consent?

(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).

Answer 32

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.’

Question 33

What does R v Clarke state regarding the objective test for reasonableness?

(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 judgement)

Answer 33

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 a subjective approach to justify the accused’s belief.

Question 34

What does R v Khan state regarding recklessness as to consent?

Answer 34

The mens rea element in sexual violation includes situations where the defendant is “reckless as to whether the complainant consents”

Question 35

What does R v Adams state regarding when consent is relevant?

Answer 35

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.

Question 36

What are the seven ‘matters not constituting consent’ and where are they found in legislation?

Answer 36

S128A CA1961

1. While he/she is so effected by alcohol or some other drug that they cannot consent/refuse to consent.
2. If he/she allows the activity because they are mistaken about who the other person is (ID).
3. If he/she does not protest or offer physical resistance.
4. When they allow the activity because of force applied, threats of force or fear of force to any person.
5. If he/she is asleep or unconscious.
6. If he/she suffers from a mental or physical impairment of a nature/degree that means they cannot consent/refuse to consent.
7. If he/she is mistaken as to the nature and quality of the act.

Question 37

Is there any limit to the ways in which a person does not consent? where is this found in legislation?

Answer 37

No - S128A(8) CA1961

‘This section does not limit the circumstances in which a person does not consent to sexual activity’

Question 38

Does a lack of protest or resistance mean a person is consenting?

Answer 38

No - what is relevant is the complainant’s state of mind. However, the fact that the complainant’s lack of consent has not been communicated to the defendant may, however, be relevant to whether he believed she was consenting, and whether that belief was reasonable.

Question 39

What does R v Koroheke state regarding consent?

Answer 39

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.

Question 40

If parties agree prior to a sexual act that is to occur once one party is asleep or unconscious, does that constitute consent? Why?

Answer 40

No - the time for consent is the time of the sexual activity without reference to things said or done before or afterwards.

Question 41

What does R v Isherwood state regarding consent?

(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”).

Answer 41

What will always be essential for there to be a valid consent is that a complainant has understood her situation and was capable of making up her mind when she agreed to sexual acts.

Question 42

What does R v Kim state regarding consent?

Answer 42

It is not essential in cases where S128A(3) or (4) apply that there be evidence from the complainant that she did not consent. Those subsections are designed to address cases where the complainant is asleep, unconscious or so affected by alcohol or drugs that she cannot give a valid consent. In such cases it will often (if not usually) be the case that the complainant will have little or no recollection of the events and will not be in a position to say whether she consented or not.

Question 43

What are the issues surrounding consent with persons with impairments? What is a possible alternative charge where the threshold for sexual violation is not met?

Answer 43

The issue is whether the the impairment was sufficiently severe as to deprive the complainant of the capacity to give or withhold consent. An alternative charge under S138 CA1961 - sexual exploitation of a person with significant impairment may be considered as an alternative to sexual violation.

Question 44

What does R v Murphy state regarding consent on the basis of mistaken identity?

Answer 44

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.

Question 45

What does R v Williams state regarding consent on the basis of mistakenness as to the nature and quality of the act?

(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).

Answer 45

Although the actual thing that was done was done with her consent, she never consented to the act of sexual intercourse. She was persuaded to consent to what he did because she thought it was not sexual intercourse, and because she thought it was not a surgical operation.

Question 46

What does the term ‘sexual activity’ to which S128A applies encompass?

Answer 46

It includes sexual connection as defined in S2 CA1961, and indecent assault.