Sexual Offence Definitions Flashcards
Person
Proven by Judicial notice or circumstantial evidence.
Rape (Verbatim)
CA.61 S.128(2)
A rapes B if A has sexual connection with B effected by the penetration of B’s genitalia by A’s penis-
a) without B’s consent to the connection AND
b) without believing on RG that B consents to the connection
Penetration
Introduction to the slightest degree is enough to effect a connection.
Penetration = Introduction
Proving penetration
- Complainants evidence
- Medical exam
- Accused admission
Genitalia
S.2
Includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (regardless of sex).
R V KOROHEKE
comprise the reproduction organs, interior and exterior … they include the vulva and labia, at the opening of the vagina.
Consent
A persons conscious and voluntary agreement to something desired or proposed by another.
R v COX
Consent must be Full, voluntary, free and informed . . . freely and voluntarily given by a person in a position to a rational judgement.
What makes sexual connection unlawful?
A B R
1. Subjective Test - Absence of Consent
The complainant did not consent to the sexual act (from complainants POV) AND
2. Subjective Test - Belief in Consent
The offender did not believe the complainant was consenting OR
3. Objective Test - RG for belief in Consent
If he did believe she was consenting the grounds for such belief were not reasonable
R v GUTUAMA
Under the objective test the Crown must prove that “No reasonable person in the accused shoes could have thought that the complainant was consenting.”
(Walk in Guatama’s shoes).
Unlawful Sexual Connection
CA.61 S128(3)
A has unlawful SC with B if A has SC with B
a) without B’s consent to the connection AND
b) without believing on RG hat B consents to the connection
Sexual Connection
CA.61 S.2
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
ii) an object manipulated by another person
b) connection between the mouth or tongue of one person and a part of another person genitalia or anus
c) the continuation of connection in a kind described
Dependant Family Member
CA.61 S.131A(1) (a)
For the purpose of s.131, A is a dependant of B if:
a) B has power or authority over A AND
i) parent,step parent, foster parent,
guardian, uncle/aunt OR
ii) parent, step parent or foster parent of
above OR
iii) a child of their parent or step parent OR
iv)spouse or de facto partner of a person in
i) ii) or iii)
b) they are members of the same family, whanau, or culturally recognised family group, and B:
ii) has a responsibility for, or a significant
role in, A’s upbringing
c) A is living with B as a member of the B’s family, and B has:
i) power or authority over him or her
ii) a responsibility for or significant role in A’s
care or upbringing
How do you Prove Age?
R V FORREST AND FORREST
The best evidence possible in the circumstance should be adduced by the prosecution in proof of the victims age.
In practice usually birth certificate and independent evidence that identifies victim as person named, (ie parent).
“Child” in relation to Crimes Act 1961
Person under 12 years.
Indecency
INDECENCY:
Has sexual connotations and involves conduct directed at a person that is offensive to public moral values.
R V COURT
Conduct that right-thinking people will consider an affront to the sexual modesty of the complainant.
“Young person” in relation to Crimes Act 1961
Person under 16 years.
Indecent Assault definition
R V LEESON
Indecent assault is an assault accompanied with circumstances of indecency.
Prosecution must prove:
- Defendant intentionally assaulted the complainant
- Circumstances accompanying the assault were indecent
- Defendant intended the conduct that a reasonable person would find indecent
What must the prosecution prove for Indecent Assault
-Intentionally assaulted victim
-circumstances were indecent
Intended the conduct, that a reasonable person would find indecent
If consent is an issue
-complainant did not consent
-Didn’t honestly believe complainant was consenting
Is anal penetration rape?
No the anus is not covered withing the definition of genitalia, therefor non-consentual penile penetration of the anus is not rape. The charge is sexual violation by unlawful sexual connection S.128(1)(b)
Genuine medical purposes
Some procedures involve penetration of a patients genitalia or anus by a doctor (cervical screen or prostate exam).If a doctor penetrates a patient on the pretense of medical necessity, when it is actually for sexual gratification, it may amount to sexual violation.
Is penetration required for oral sexual connection?
No, any touching of a persons genitalia or anus with another persons mouth or tongue is sufficient to cause connection.
Explain Continuation
Sexual activity is started consensually but consent is later withdrawn. There is an obligation to stop at the point the person realizes the other person is,or may be, no longer willing.
Define Assault
The act of intentionally applying or attempting to apply force to the person of another directly or indirectly
or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on RG that he has present ability to effect his purpose.
Intent - specific to S129(2)
CHECK FURTHER PG 35
the offender assaults the victim:
-in the hope that the complainant will them change their mind and consent to the act OR
-intending to commit SV regardlessof whether the complainant changes their mind.
CHECK THIS FURTHER WITH SOMEONE###
Consent of a child
Consent of child is not a defense under S.132
COX V R
Although we do not exclude he possibility that a child of ten or eleven may be able to give a full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare.
(Simply because of age and sexual development, they do not understand the significance of the act, not legal consent.)
