Sexual & Kidnapping - definitions/case law

Question 1

Define - Rape

Answer 1

S.128(2), CA 1961;
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’ to the connection, AND
b) without believing on ‘reasonable grounds’ that person B consents.

Question 2

Define - Penetration

Answer 2

S.2(1A), CA 1961;
Introduction and penetration have the same meaning.

Introduction to the slightest degree is enough to effect a connection.

Proof of penetration is required;
Proof may be provided by:
- The complainants evidence
- Medical examination, (DNA, injuries)
- Accused's admissions

Question 3

Define - Genitalia

Answer 3

The genitalia or genitals (literally: organs of generation) include the penis and testicals of a male, and the vagina and vulva of a female.

S.2, CA 1961;
Genitalia includes 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 4

Genitalia C.L

Answer 4

R v KOROHEKE
Genitalia comprise of the reproductive organs, interior and exterior. Include vulva and labia both interior and exterior of opening of vagina.

Question 5

Define - Penis

Answer 5

The male organ of reproduction.

S.2, CA 1961;
Includes a surgically constructed and reconstructed organ analogous to naturally occurring penis (whether the person concerned is male, female or of indeterminate sex).

Question 6

Define - Consent

Answer 6

A person’s conscious and deliberate agreement to do something desired or proposed by another.

Question 7

Consent C.L

Answer 7

R v COX
Consent must be ‘full, voluntary, free and informed’……freely and voluntarily given by a person in a position to form a rational judgement.

Question 8

Non consent under certain circumstances

Answer 8

S.128A, CA 1961;
A person does not consent to sexual activity under certain circumstances.

Matters that do not constitute consent:
(RAIN MAD)
R - Resistance; not protesting or offering physical resistance use of force, threats of force, or fear of force.
A - Asleep or unconscious.
I - Identity; Mistaken ID.
N - Nature; Mistaken as to the nature and quality of the act.

M - Mental; So affected by mental or physical impairment they cannot consent.
A - Alcohol; So affected by alcohol they cannot consent.
D - Drugs; So affected by drugs they cannot consent.

Question 9

Definitions for Rape

Answer 9

• Rape - S128(2)
• Penetration - S2(1A)
• Genitalia - S2
• Penis - S2
• Consent
• Reasonable Grounds

Question 10

Define - Reasonable Grounds

Answer 10

A three step process:

1. Subjective test - Absence of consent - What was the complainant thinking at the time? Was she consenting?
2. Subjective test - Belief in consent - If she wasn’t consenting, did the offender believe she was consenting? What was the offender thinking at the time.
3. Objective test - Reasonable grounds for belief in consent - If the offender believed complainant was consenting, was that belief reasonable in the circumstances. Is it what a reasonable person would have believed if placed in the same position as the defendant?

Question 11

Reasonable Grounds C.L

Answer 11

R v GUTUAMA
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 12

Define - Unlawful Sexual Connection

Answer 12

S.128(3), CA 1961;
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 consents to the connection.

Question 13

Define - Sexual Connection

Answer 13

S.2 CA 1961;
a) Connection is 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, OR
An object held or manipulated by another person, OR
b) Connection between the mouth or 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 (a) or (b).

Question 14

Define Child

Answer 14

S132(6) (a), CA1961

Child means a person under the age of 12.

Question 15

Define Young Person

Answer 15

S134(6) (a), CA1961

Young person means a person under the age of 16.

Question 16

Child/YP C.L

Answer 16

R v FORREST & FORREST
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.

** Birth cert. & an independent person who can give the age of the birth date for the child, i.e- mother who gave birth to child.

Question 17

Define indecent

Answer 17

An act that is ‘indecent’ has sexual connotations and involves conduct directed at a person that is offensive to public moral values.

Question 18

I.A definition C.L

Answer 18

R v LEESON

the definition of indecent assault is an act accompanied with circumstances of indecency.

Question 19

Indecent C.L

Answer 19

R v COURT

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