Sexual offences Flashcards
Sexual Violation Sec 128(1) CA 61
1) Sexual Violation is the act of a person who
a) rapes another person
OR
b) has unlawful sexual connection with another person
Sexual Violation by Rape liability
128(1)(a)
20yrs
A person
Rapes
Another person
Sextion 128(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 time the connection
AND
B) without believing in reasonable grounds that person B consents to the connection
Penetration Sec 2(1A) CA 61
Introduction and Penetration have the same meaning.
Sec 2(1A) CA 61 Introduction to the slightest degree is enough to effect a connection.
Proving penetration
Complainants evidence
Medical examination ( physical injuries, DNA evidence)
Accused admissions.
Sexual connection Sec 2 CA 61
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).
Genitalia Sec 2 CA 61
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).
R v KOROHEKE
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.
Penis Sec 2 CA 61
Penis includes a surgically constructed or reconstructed organ analogous to naturally occurring penis( whether the person concerned is male, female or indeterminate sex).
Consent
‘Consent’ is a person 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 form a rational judgement”.
Matters that do not constitute consent - Sec 128A CA 61
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.
Reasonable Grounds
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.
R v GUTUAMA
Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought the complaint was consenting.
Unlawful Sexual Connection Sec 128(3) CA 61
(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
Unlawful Sexual Connection liability
Sec 128(1)(b)
20 years
A person
Has unlawful sexual connection
With another person
Assault with intent to commit sexual violation Sec 129(2) CA 61
10 years
A person
Assaults another person
With intent to commit sexual violation
Of the other person .
Assault Sec 2 CA 61
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.
Sexual Conduct with a child under 12
Sec 132 CA 61
(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
Child Sec 132(6)(a) CA 61
Child means a person under the age of 12 years
Sec 132(6)(b) CA 61
Doing an indecent act on a child includes indecently assaulting the child.
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of (the victims) age
Proof of age
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
