Sexual offences

Question 1

Sexual Violation Sec 128(1) CA 61

Answer 1

1) Sexual Violation is the act of a person who
a) rapes another person
OR
b) has unlawful sexual connection with another person

Question 2

Sexual Violation by Rape liability
128(1)(a)
20yrs

Answer 2

A person
Rapes
Another person

Question 3

Sextion 128(2)

Answer 3

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 time the connection
AND
B) without believing in reasonable grounds that person B consents to the connection

Question 4

Penetration Sec 2(1A) CA 61

Answer 4

Introduction and Penetration have the same meaning.

Sec 2(1A) CA 61 Introduction to the slightest degree is enough to effect a connection.

Question 5

Proving penetration

Answer 5

Complainants evidence
Medical examination ( physical injuries, DNA evidence)
Accused admissions.

Question 6

Sexual connection Sec 2 CA 61

Answer 6

Sexual connection means:

(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 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 persons genitalia or anus OR
(c) the continuation of connection of a kind described in paragraph (a) or (b).

Question 7

Genitalia Sec 2 CA 61

Answer 7

Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia ( whether the person concerned is male, female or indeterminate sex).

Question 8

R v KOROHEKE

Answer 8

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 9

Penis Sec 2 CA 61

Answer 9

Penis includes a surgically constructed or reconstructed organ analogous to naturally occurring penis( whether the person concerned is male, female or indeterminate sex).

Question 10

Consent

Answer 10

‘Consent’ is a person conscious and voluntary agreement to something desired or proposed by another.

Question 11

R v COX

Answer 11

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

Question 12

Matters that do not constitute consent - Sec 128A CA 61

Answer 12

not protesting or offering physical resistance to use of force
application of force to self or others, threats of force to self or others, or fear of force to self or others.
asleep or unconscious
so affected by drugs/alcohol they cannot consent
so affected by mental or physical impairment they cannot consent
mistaken ID
mistaken as to the nature and quality of the act.

Question 13

Reasonable Grounds

Answer 13

The establishing of reasonable grounds is a three step process
Subjective Test - Step 1 - Absence of Consent
What was the complainant thinking at the time? Was s/he consenting?

Subjective Test - Step 2 - Belief in consent
If s/he were not consenting, did the offender believe the complainant was consenting? What was the offender thinking at the time.

Objective Test - Step 3 - Reasonable grounds for belief in consent
If the offender believed the complaint was consenting, was that reasonable in the circumstances. Ie: what would a reasonable person have believed if placed in the same position as the defendant.

Question 14

R v GUTUAMA

Answer 14

Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought the complaint was consenting.

Question 15

Unlawful Sexual Connection Sec 128(3) CA 61

Answer 15

(3) Person A has unlawful sexual connection with person B if person A has sexual connection with person b:
a) without person B’s consent time the connection
AND
B) without believing in reasonable grounds that person B consents to the connection

Question 16

Unlawful Sexual Connection liability
Sec 128(1)(b)
20 years

Answer 16

A person
Has unlawful sexual connection
With another person

Question 17

Assault with intent to commit sexual violation Sec 129(2) CA 61
10 years

Answer 17

A person
Assaults another person
With intent to commit sexual violation
Of the other person .

Question 18

Assault Sec 2 CA 61

Answer 18

Assault means 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 reasonable grounds that he has, the present ability to effect his purpose; and to assault has the corresponding meaning.

Question 19

Sexual Conduct with a child under 12

Sec 132 CA 61

Answer 19

(1) everyone who has sexual connection with a child is liable to imprisonment for a term not exceeding 14 years
(2) everyone who attempts to have sexual connection with a child is liable to imprisonment for a term not exceeding 10 years
(3) everyone who does an indecent act on a child is liable to imprisonment for a term not exceeding 10 years

Question 20

Child Sec 132(6)(a) CA 61

Answer 20

Child means a person under the age of 12 years

Question 21

Sec 132(6)(b) CA 61

Answer 21

Doing an indecent act on a child includes indecently assaulting the child.

Question 22

R v Forrest and Forrest

Answer 22

The best evidence possible in the circumstances should be adduced by the prosecution in proof of (the victims) age

Question 23

Proof of age

Answer 23

In practise this generally involves producing the complainants birth certificate in conjunction with independence evidence that identifies the complaint as the person named in the certificate