Sexual offences Flashcards
Sexual violation by rape Section Act Penalty Ingredients
Section: 128(1)(a) Act: Crimes Act 1961 Penalty: 20 years Ingredients 1. A Person *********************** 2. Rapes ************************ 3. Another person
Ingredient - Case law and definition Another person/everyone/with another person etc
- Person def
Ingredient - Case law and definition Rapes
- Rape def 2. Penetration 3. Proof of penetration 4. Genitalia def 5. R V Koroheke 6. Penis def 7. Consent def 8. R V Cox 9. Matters that do not constitute consent *** 10. Reasonable grounds 11. R V Gutuama
Rape
Person A rapes person B if person A has sexual connection with person B effected by the penetration of person B genitalia by person A’s penis (a) without Persons B’s consent to the connection and (b) without believing on reasonable grounds person B consented to the connection Section 128(2), Crimes Act 1961
Penetration
Introduction and penetration have the same meaning Introduction to the slightest degree is enough to effect a connection Section 2(1A), Crimes Act 1961
Proof of penetration is required
Proof my be provided by - the complainants evidence - medical examination (DNA, Injuries) - Accused admissions
Genitalia
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) Section 2, Crimes Act 1961
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
Penis includes a surgically constructed or reconstructed organ analogous to naturally occurring penis (whether the person concerned is male, female or of indeterminate sex) Section 2, Crimes Act 1961
Consent
Consent is 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 form a rational judgement
Matters that do not constitute consent
- Not protesting or offering physical resistance to the 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 identity - Mistaken as to the nature and quality of the act Section 128A, Crimes Act 1961
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 i.e. What was the offender thinking at the time? Objective test - Step 3 - Reasonable grounds for belief in consent If the offender believed the complainant was consenting, was that belief reasonable in the circumstances? i.e. 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 shoes could have thought the complainant was consenting”
Sexual violation by unlawful sexual connection Section Act Penalty Ingredients
Section: 128(1)(b) Act: Crimes Act 1961 Penalty: 20 years Ingredients 1. A Person *********************** 2. has unlawful sexual connection ************************ 3. with another person
Ingredient - Case laws and definition Has unlawful sexual connection
- Unlawful sexual connection def 2. Sexual connection 3. Penetration 4. Proof of penetration 5. Genitalia def *** 6. R V Koroheke *** 7. Consent def 8. R V Cox 9. Matters that do not constitute consent *** 10. Reasonable grounds 11. R V Gutuama
Unlawful sexual connection
Person A has unlawful sexual connection with person B if person A has sexual connection with person B (a) without person B’s consent to the connection and (b) without believing on reasonable grounds person B consents to the connection Section 128(3), Crimes Act 1961
Sexual connection
(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 paragraph (b)
Assault with intent to commit sexual violation Section Act Penalty Ingredients
Section: 129(2) Act: Crimes Act 1961 Penalty: 10 years Ingredients 1. A Person *********************** 2. assaults another person ************************ 3. With intent to commit sexual violation ************************ 4. of the another person
Ingredient - Case laws and definition Assaults another person
- Assault