Sexual Offences

Question 1

Sexual Violation By Rape

Answer 1

Crimes Act 1961 Sec.128(1)(a) and Sec.128B 20 years Imprisonment

A person

Rapes (R v Koroheke) (R v Cox) (R v Gutuama)

Another person

Question 2

R v Koroheke-genitalia

Answer 2

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 3

R v Cox

Answer 3

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

Question 4

R v Gutuama

Answer 4

Under the objective test the Crown must prove that “no reasonable person in the acccused’s shoes could have thought that [the complainant] was consenting.”

Question 5

Sexual Violation by Unlawful Sexual Connection

Answer 5

Crimes Act 1961 Sec.128(1)(b) and Sec.128B 20 years imprisonment

A person

Has Unlawful Sexual Connection (R v Koroheke) (R v Cox) (R v Gutuama)

With another person

Question 6

Assault with Intent to commit Sexual Violation

Answer 6

Crimes Act 1961 Section 129(2) 10 years Imprisonment

A person - defined

Assaults another person - definitions

With Intent to commit sexual violation-definitions and R v Collister

Question 7

Attempted Sexual Violation

Answer 7

Crimes Act 1961 Section 129(1) 10 Years Imprisonment

A person - person defined

Who attempts-Def and R v Harpur

To commit sexual violation-defined

Question 8

Sexual conduct with dependant family member-sexual connection

Answer 8

Crimes Act 1961 Section 131(1) 7 Years Imprisonment

A person - person defined

Has sexual connection- defined

With a dependant family member under 18 years old - defined and R v Forrest and Forrest

Question 9

Sexual conduct with a child under 12-sexual connection

Answer 9

Crimes Act 1961 Section 132(1) 14 years Imprisonment

A person - person defined

Has sexual connection - defined

With a child-means person under 12 years old
R v Forrest and Forrest

Question 10

Sexual conduct with a child under 12-indecent act

Answer 10

Crimes Act 1961 132(3) 10 years Imprisonment

A person - person defined

Does an indecent act-defined

On a child-means a person under 12 years old
R v Forrest and Forrest

Question 11

Sexual conduct with a young person under 16-sexual connection

Answer 11

Crimes Act 1961 Section 134(1) 10 years Imprisonment

A person - person defined

Has sexual connection-defined

With a young person-person under 16 years old
R v Forrest and Forrest

Question 12

Sexual connection with a young person under 16-indecent act

Answer 12

Crimes Act 1961 Section 134(3) 7 years Imprisonment

A person - person defined

Does indecent act-defined

On a young person-person under 16 years old
R v Forrest and Forrest

Question 12

Indecent Assault

Answer 12

Crimes Act 1961 Sec.135
7 years Imprisonment

A person - defined

Indecently Assaults - defined and R v Court and R v Leeson

Another person - defined

Question 13

Sexual violation defined

Answer 13

Crimes Act 1961 section 128
(1) Sexual violation is the act of a person who-
(a) Rapes another person; or
(b) has unlawful sexual connection with another person.

(2) Person A rapes person B if person A has sexual connection with person B, effected by penetration of person A’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 to the connection.

In short: Rape is effected by person A penetrating the genitalia of person B with their penis, without their consent or a belief they were consenting.

Question 14

R v Koroheke-Consent (freezing)

Answer 14

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 15

R v Cook - consent

Answer 15

To be effective, consent must be “real, genuine or true consent, and that it may be conveyed by words or conduct or both.”

Question 16

Cox v R - consent (child under 12)

Answer 16

“Although we do not exclude the 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. A ten or eleven year old child may know what sexual intercourse is. She may indicate her agreement.”

Question 17

Cox v R (What would a reason person in defendant’s shoes believe?)

Answer 17

“Save in exceptional and rare circumstances…even where she indicates an agreement to the act occurring…no reasonable adult would have grounds for believing that a ten or eleven year old girl has the experience or maturity to understand the nature and significance of the act.”

Question 18

Indecent act on a child Section 132(3) Crimes Act 1961
If such an act is done with the consent of the child, it is immaterial whether:

Answer 18

The offender does the act on the child.

The child does the act on the offender.

The act is mutual.

Question 19

Indecency defined
R v Court
R v Dunn

Answer 19

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

R v Court-Indecency means “conduct that right thinking people will consider an affront to the sexual modesty of [the complainant].”

R v Dunn-Indecency must be judged in light of the time, place and circumstances. It must be something more than trifling, and be sufficient to “warrant the sanction of the law.”

Question 20

Defence to charge under Section 134 Crimes Act 1961

Answer 20

It may provide a defence to a charge under Section 134 if the defendant proves that at the time of the sexual activity:

They had taken reasonable steps to 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 21

R v Leeson

Answer 21

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

Question 22

Indecent assault-what the prosecution must prove.

Answer 22

In these cases the prosecution must prove:

The defendant intentionally assaulted the complainant.

The circumstances accompanying the assault were indecent.

The defendant intended the conduct that a reasonable person would find indecent.

If the issue of consent is raised on the evidence, the prosecution must prove beyond reasonable doubt a further two elements:

The complainant did not consent to the assault.

The defendant did not honestly believe the complainant was consenting.

Question 23

R v Norris-belief in consent

Answer 23

If a person who is charged with indecent assault is able to establish that they honestly believed that the complainant was consenting, they are entitled to be acquitted even though the grounds of his belief were unreasonable.

Question 24

R v Forrest and Forrest

Answer 24

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”

Question 25

Unlawfully-definition

Answer 25

Unlawfully means “without lawful justification or excuse.”

Question 26

Sexual connection-defined as per Crimes Act 1961 Section 2

Answer 26

(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, -
(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 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 paragraph (a) OR paragraph (b)

Question 27

To be guilty of an attempt to commit an offence a person must:

Answer 27

Intend to commit the offence.

Take a real and substantial step towards achieving that aim.

Question 28

R v Harpur

Answer 28

“[The Court may] have regard to the conduct viewed cumulatively up to the point when the conduct in question stops…the defendant’s conduct [may] be considered in it’s entirety. Considering how much remains to be done…is always relevant, though not determinative. “

Question 29

Genitalia-defined

Answer 29

Crimes Act 1961 Section 2

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 30

R v Koroheke-consent

Answer 30

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 31

Penis defined

Answer 31

Crimes Act 1961 Sec.2
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 32

R v Adam

Answer 32

The material time when consent, and belief in consent, is to be considered is at the time the act actually took place.

Question 33

Sec.128A Crimes Act 1961
Allowing sexual activity does not amount to consent in some circumstances

Answer 33

(1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.

(2) A person does not consent to sexual activity if he or she allows the activity because of-
(a) force applied to him or her or some other person; or
(b) the threat (express or implied) of the application of force to him or her or some other person; or
(c) the fear of the application of force to him or her or some other person.

(3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.

(4) A person does not consent to sexual activity if the activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.

(5) A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.

(6) One person does not consent to sexual activity with another person if she allows the sexual activity because he or she is mistaken about who the other person is.

(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.