Sexual Offences

Question 1

s128(1)(a)

Answer 1

• A person
• Rapes
• Another person

Question 2

Define rape

Answer 2

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

AND

(b) Without believing on reasonable grounds that person B consents to the connection.

Question 3

Penetration defined

Answer 3

As per s2 Crimes Act.

Introduction to the slightest degree is enough to effect connection.

Any degree of penetration no matter how slight or fleeting is sufficient.

Question 4

Proof of penetration

Answer 4

• A medical examination, including physical injuries and DNA evidence.
• The complainants testimony.
• The accused admissions.

Question 5

R v Koroheke

Answer 5

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

Question 6

Genitalia definition

Answer 6

The genitalia or genitals include the penis and testicle of a male, the vagina and vulva of a female.

Includes surgically constructed or reconstructed genitalia to allow for offences involving trans-gender individuals.

Question 7

Anus and rape?

Answer 7

Anus is not included within the definition of genitalia, and therefore non consensual penile penetration of the anus is not rape.

Appropriate charge would be 128(1)(b)

Question 8

R v Cox

Answer 8

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

Question 9

128(1)(b)

Answer 9

• A person
• Has unlawful sexual connection
• With another person

Question 10

128A - Circumstances not constituting consent

Answer 10

A person does not consent to sexual activity under certain circumstances

Matters that do not constitute consent:

• Not protesting or offering physical resistance to the activity.
• allows activity because of force applied to him or her or some other person OR
• The threat of express or implied of the application of force to him or her some other person; OR
• The fear of the application of force to him or her or some other person.
• A person can not consent to sexual acitivty if they are asleep or unconcious.
• A person does not consent to sexual activity if they are so affected by alcohol or drugs that they cannot consent.
• A person does not consent to sexual activity if the person had a mental, intellectual, physical condition or impairment of such a nature and degree that he or she cannot consent.
• Does not consent if they are mistaken about who the person is.
• Does not consent if they are mistaken about its nature and quality.

Question 11

Establishing Reasonable Grounds

Answer 11

3 STEP TEST 👌

Subjective test

Step 1
Was the complainant consenting?
From their point of view.
What were they thinking at the time.

Step 2
Did the offender think the complainant was consenting?
What was the offender thinking at the time?

Step 3 Objective test
Was the defendants belief reasonable in the circumstances?

What would a reasonable person have believed if in the same circumstances.

Question 12

R v Gutuama

Answer 12

Under the objective test the crown must prove “no reasonable person in the accused’s shoes could have thought the complainant was consenting”.

Question 13

128(3)

Answer 13

Person A has an unlawful sexual connection with person B if:

• Without persons consent to the connection
• Without believing on reasonable grounds that person B consents to the connection.

Question 14

Oral sexual connection

Answer 14

Regarding oral sexual connection, it is not necessary for there to be penetration.

Any touching of a person’s mouth connecting with genitalia.

Question 15

Continuation of the connection

Answer 15

Sexual connection includes the ‘continuation’ of such acts, capturing situations where sexual activity is started consenually but consent is withdrawn.

Question 16

S128b Imprisonment time

Answer 16

20 years!

Question 17

129(1) & 129(2)

Answer 17

129(1)Attempted sexual violation.

129(2)

• A person.
• Assaults.
• Another person.
• With intent to commit sexual violation of the other person.

Question 18

S132(3)

Answer 18

Indecent act on a child
Child is under 12!

This covers all indecent acts on a child.

Question 19

134A Statutory Defence

Answer 19

1(a) Before the time of the act concerned, he or she had taken reasonable steps. To find out whether the young person concerned was of or over the age of 16 AND

(b) At the time of the act, believed they believed on reasonable grounds that the young person was over 16.
(c) The young person consented.

Question 20

R v Leeson

Answer 20

The definition of “indecent assault” is an assault accompanied with circumstances of indecency.

Question 21

Indecency definition

Answer 21

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

Question 22

R v Court

Answer 22

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

Question 23

S135

Answer 23

• A person
• Indecently adults
• Another person

Question 24

S132(1)

Answer 24

Sexual connection with child under 12

Question 25

Define sexual connection

Answer 25

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

• Any part of the body of another person.
• an object held or manipulated by another person.
• Connection between the mouth or tounge of one person and a part of another person’s genitalia or anus.
• the continuation of such acts - (consent withdrawn)

Question 26

R v Norris

Answer 26

When charged with indecent assault, if they honestly believed that the complainant was consenting, they are entitled to be acquitted, even though the grounds for his belief were unreasonable.