Sexual crimes

Question 1

What must be proved?

Answer 1

There was an intentional act

The complainant did not consent to the sexual act

the offender did not believe the complainant was consenting

If he did believe she was consenting the grounds for belief were not reasonable

Question 2

Sexual violation

Section 128 (1) (a) CA1961

Answer 2

Is a person

Who rapes

Another person

Question 3

Person offence defined

Answer 3

Proven by judicial notice or circumstancial evidence

Gender neutral

Question 4

Penetration
Definition
Section 2 CA1961

Answer 4

Section 2 (1A)

Introduction to the slightest degree is enough to effect a connection

Although 128(2) states penetration is effected by a penis and most rape offenders will be male, the definition of penis includes surgically constructed or reconstructed organs.

Offence extends to gender reassigned (sex change) persons

Question 5

Proof of penetration

Answer 5

A medical exam including physical injury and DNA

Admissions

The complainants testimony

Question 6

R v KOROHEKE

Genitalia Case Law

Answer 6

the genitalia comprise the reproduction organs, interior and exterior… they include the vulva,the labia, both interior and exterior, at the opening of the vagina.

Question 7

Penis defined

Answer 7

Penis includes a surgically constructed or reconstructed organ analogues to a normal penis

Question 8

Consent

Answer 8

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

Consent must be full , voluntary free and informed.

R v COX

Question 9

Section 128A Ca1961

Answer 9

Not consent

• not protesting or offering physical resistance to the activity (I just froze..)
• allows activity because of force applied to her or another (family)
• so affected by alcohol or some other he or she cannot consent or refuse to consent to the activity
• so affected by an Intellectual, mental or physical impairment of such a nature and degree that he or she cannot consent to the activity.
• mistaken about identity or who the other person is
• mistaken as to the nature and the quality of the act

Question 10

Establishing reasonable grounds

Answer 10

Step. 1 subjective test- Absence of consent

What was the complainant thinking at the time? Was she consenting?

The crown must prove that the complainant was not consenting.

Step. 2 subjective belief in consent

Step 3- objective test-

• if the offender believed the complainant was consenting the third step is:
• what would a reasonable person have believed if in the same position as the defendant?

If she wasn’t consenting? Did the offender believe she was consenting.

What was the offender thinking at the time?

Question 11

R v GUTUAMA

Answer 11

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

Question 12

Indecent assault case law-

The definition of ‘indecent assault’ is an assault accompanied with circumstances of indecency

Answer 12

R v LEESON

Question 13

Indecency

Answer 13

Indecency means

Conduct that right thinking people will consider an affront to the sexual modesty of the complainant.

Question 14

Incest

S130 CA1961

Answer 14

Sexual connection is Incest if-

It is between 2 people

Who are-

Parent and child

Siblings, half siblings

Grandparent and grandchildren

And

The person charged knows of the relationship

Question 15

Section 87 Evidence Act 2006

Privacy as to witnesses precise address

To protect the complainant from retribution

Answer 15

(1) in any proceeding, the precise particulars of a witness’s address (for example, details of the street and number) may not, without the permission of a judge, be-
(a) the subject of any question to a witness or included in any evidence given, or
(b) included in any statement or remark made by a witness, lawyer, officer of court, or any other person.

Question 16

Outline sexual connection as defined in s 2 CA1961

Answer 16

Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes of-

A part of the body of another person

An object held or manipulated by another person,or

Connection between the mouth or tongue person and a part of another persons genitaliaor anus

The continuation of connection of a kind described in paragraphs 1-2

Question 17

What was held in R v COX in relation to Consent?

Answer 17

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

Question 18

Detail the statutory defence to a charge of sexual conduct with a young person under16 years pursuant to:

section 134A (1) CA61

Answer 18

Section 134A, CA1961

Defence to a charge under section 134 if the person charged proves that at the time of the sexual activity

They had taken reasonable ascertain that the young person was at least 16, and

They believed on reasonable grounds that the young person was at least 16 and,

The young person consented.

Question 19

Section 132 CA1961-

sexual conduct with a child.

Answer 19

In this section, a child means a person under the age of 12 years.

Question 20

Cox v R

Answer 20

The circumstances in which a child of ten or eleven years may be able give full, voluntary, free and informed consent to sexual intercourse wood be

exceptional or rare

Question 21

Section 128 (1) (a) ca 1961

Answer 21

A person

Rapes

Another person

Question 22

Section 128 (1) (b) CrimesAct

Sexual violation by unlawful sexual connection

Answer 22

A persons

Has unlawful sexual connection

With another person

Question 23

What are the three offences under section 134 of the Crimes Act?

Answer 23

1) has sexual connection with a young person
2) attempts to have sexual connection with a young person
3) does an indecent act on a young person

Question 24

In any criminal prosecution where proving age is an essential ingredient of a charge, the prosecution must prove the complainants age at the time of the offence.

a) what is the best way of doing this?
b) what is the leading case law to proving age and what was found in the case?

Answer 24

a) Produce the complainants birth certificate in conjunction with independent evidence that identifies the complainant as the person in the certificate.
b) R v FORREST and FORREST- the best evidence possible should adduced by the prosecution in proof of the victims age

Question 25

You catch a brother and sister fucking.

They regularly have consensual Sex.

Uncharged then with incest..

List the act and section and elements

Answer 25

Section 130 CA1961

Sexual connection between parent and child, siblings,half siblings, or grandparent and grandchild and the person knows of the relationship.

Question 26

Anus

definition
Section 2 CA1961

Answer 26

The anus is not included within the definition of genitalia, and therefore non-consensual penile penetration of the anus is NOT RAPE.

The appropriate charge would be one of SEXUAL VIOLATION by UNLAWFUL SEXUAL CONNECTION under section

128 (1) (b).

Question 27

R v GUTUAMA

Case law regarding CONSENT

Answer 27

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