Sexual offences Flashcards
Penalty for rape
20 years
Define rape
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
Without Person B’s consent to the connection
AND
Without believing on reasonable grounds that person B consents to the connection
True or false
Introduction and penetration have the same meaning
True
True or false
Introduction to the slightest degree is enough to effect a connection
True
Section 2(1A), Crimes Act 1961
Proof of penetration is required.
Proof may be provided by (3 points)
- The complainants evidence
- Medical examination (DNA, injuries)
- Accused admissions
Is surgically constructed or reconstructed organs analogous to naturally occurring male or female genitalia
included in ‘genitalia’
yes or no
yes
Define consent
A person’s conscious and voluntary agreement to something desired or proposed by another.
Consent must be “full, voluntary, free and informed… freely and voluntarily given by a person in a position to form a rational judgement”
R V COX
Matters that DO NOT constitute consent
(7 points)
Section 128A, Crimes Act 1961
- 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 impaired by mental or physical impairment they cannot consent
- Mistaken ID
- Mistake as to nature and quality of the act
The three steps to establishing ‘Reasonable grounds’
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? ie 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 the belief reasonable in the circumstances. Ie what would a reasonable person have believed if placed in the same position as the defendant?
What must the Crown prove under the objective test?
R V GUTUAMA
“No reasonable person in the accused shoes could have though the complainant was consenting”
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 that person B consents to the connection
Define 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 person’s genitalia or anus; or
c) the continuation of a kind described in paragraph (a) or paragraph (b)
Dependent Family Member
For the purpose of section 131, one person is a dependent family member of another person-
a) If the other person has power or authority over him or her, and is -
i) his or her parent, step-parent, foster parent, guardian, uncle or aunt; or
ii) a parent, step-parent, or foster parent of a person described in subparagraph (i); or
iii) a child of his or her parent or step-parent; or
iv) is the spouse or de facto partner of a person described in
subparagraph (i) or subparagraph (ii) or subparagraph (iii)
OR
If they are members of the same family, whanau, or other culturally recognised family group, and the other person-
i) Is not a person referred to in paragraph (a); but
ii) has a responsibility for, or significant role in, his or her care or upbringing
OR
If he or she is living with the other person as a member of the other person’s family, and the other person is not a person referred to in paragraph (a), but has-
i) power or authority over him or her; and
ii) a responsibility for, or significant role in, his or her care or upbringing.
Proving age
R V Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim]’s age.
In practice this generally involves producing the victim’s birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
Define child
person UNDER the age of 12 years
