Sexual Offences, Definitions and Case Law

Question 1

Sexual Violation by Rape Definition

Answer 1

“Rape” is a specific form of sexual violation that involves the non-consensual
penetration of the complainant’s genitalia by the offender’s penis, and the offender knows that the complainant is not consenting.

Question 2

Sexual Violation by Unlawful Sexual Connection Definition

Answer 2

“Unlawful Sexual Connection” has a wider meaning than rape, and includes any form
of non-consensual penetration or oral connection with a person’s genitalia or anus without the complainants consent, and without the belief from the defendnats that the complainant was consenting.

Question 3

What must be proved beyond reasonable doubt in all cases of Sexual Violation?

Answer 3

• there was an intentional act by the offender involving sexual connection with the complainant,
  AND
• the complainant did not consent to the sexual act,
  AND
• the offender did not believe the complainant was consenting and acted anyway

OR

• if the offender did believe the complainant was consenting, the grounds for such a belief were not reasonable and acted anyway

Question 4

Does being married or being a spouse give any defence to sexual violation?

Answer 4

No, a spouse who sexually violates their spouse has no legal defence due to the fact that the couple are legally married.

Question 5

Sexual violation punishment and 2 exceptions to the nature of the punishment…

Answer 5

Everyone who commits sexual violation is liable to imprisonment up to 20 years.

A person convicted of sexual violation must be sentenced to imprisonment unless the court thinks:

(a) the particular circumstances of the person convicted; and
(b) the particular circumstances of the offence, including the nature of the conduct constituting it means the offender should not be imprisoned.

Question 6

Sexual Violation by Rape Section and Elements

Answer 6

Crimes Act 1961, Section 128 (1) (a)

• A person
• Rapes
• Another person

Question 7

Sexual Violation by Unlawful Sexual Connection Section and Elements

Answer 7

Crimes Act 1961, Section 128 (1) (b)

• A person
• Has unlawful sexual connection
• With another person

Question 8

Is being married to a person a defence to a sexual violation?

Answer 8

No, one person may be convicted of the sexual violation of another person at a time when they were married to each other.

Question 9

Sexual
connection
defined under section 2 (Need to know)

Answer 9

Sexual connection means—
The introduction into the genitalia or anus of a 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 connection of a kind previously described

Question 10

How much penetration is required to be sufficient?

Answer 10

The extent of penetration is not relevant, any degree of penetration, no
matter how slight or fleeting, is sufficient.

Question 11

Proving
penetration

Answer 11

Proof of penetration may be established by:
* the complainant’s evidence
* medical examination, including physical injuries and DNA evidence
* the defendant’s admissions

Question 12

Genitalia defined.

Answer 12

The penis and testicles of a male, and the vulva and vagina of a female, also includes surgically constructed or reconstructed genitalia to allow for offences involving trans-gender individuals.

Question 13

Case Law for Definition of Genitals..

Answer 13

R v Koroheke

The genitalia comprise the reproduction organs, interior and exterior and includes the vulva and the labia, and the opening of the Vagina

Question 14

Penis Definition

Answer 14

The penis forms part of the male genitalia and includes a surgically constructed or reconstructed Penis.

Question 15

Anus definition

Answer 15

Anus is not included within the definition of genitalia, and therefore non-consensual penile penetration of the anus is not rape.

Question 16

Genuine medical purposes definition

Answer 16

Some medical procedures involve penetration of a patient’s genitalia or anus by a doctor. Provided this is done for genuine medical purposes, such penetration is excluded from the definition of sexual connection.

however, that if a doctor penetrates a patient on the pretence of medical necessity, when it is actually for sexual gratification, it may amount to sexual violation.

Question 17

No
presumption
because of age

Answer 17

This provision means that any person of any age is capable, in a legal sense, of being involved in sexual connection.

Therefore it would not be a defence to a sex-related charge to say that either of the parties was too young or too old to have sexual connection

Question 18

What makes
sexual
connection
unlawful?

Answer 18

The Crown must prove that:
* the complainant did not consent to the sexual act (a subjective test), and
* the offender did not believe the complainant was consenting (a subjective
test), or
* if he did believe she was consenting, the grounds for such a belief were not reasonable (an objective test).

Question 19

Consent definition and Case Law (x3)

Answer 19

“Consent” is a person’s 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 and informed judgment”.

R v Gutuama

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

R v Koroheke

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 20

Circumstances that do not amount to Consensual sex.

Answer 20

1. Force - force applied to him or her or some other person.
2. Threat - the threat (express or implied) of the application of force
3. Fear - the fear of the application of force to him or her or some other person.
4. Sleeping or unconscious
5. Alcohol and Drugs - So much so that consent can be given or refused.
6. intellectual, mental, or physical condition or impairment that he or she cannot consent.
7. mistaken about its nature and quality

Question 21

Lack of protest
or resistance

Answer 21

A lack of protest or resistance does not mean a person is consenting, even if the lack of consent has not been communicated to the defendant; what is relevant is the complainant’s state of mind.

The fact that the complainant’s lack of consent has not been communicated to the defendant may, however, be relevant to whether he believed she was consenting, and whether that belief was reasonable.

Question 22

Mistake as to nature and quality of act

Answer 22

Consent is also nullified when the complainant was unaware of the true nature of the physical act to which they were agreeing.

Example:
In R v Flattery, a 14-year-old girl consented to intercourse because she had been led to believe that it was a form of medical treatment.

Question 23

“Rape” requires what gender?

Answer 23

Gender neutral offence However penetration must be by a penis, however it can be a reconstructed penis. Offenders are likely to be male for rape offences

Question 24

Define rape

Answer 24

When person A penetrates the genitals of person B without their consent or reasons grounds to believe there was consent

Question 25

Sexual connection - A person

Answer 25

Gender neutral, normally accepted by judicial notice or proven by circumstantial evidence

Question 26

Sexual connection defined

Answer 26

• penetration of a person’s genitalia or anus, other than for genuine medical reasons , by a part of another person’s body or an object held or manipulated by another persons body OR the touching of a person’s genitalia or anus by another person’s mouth or tongue, or the continuation of the above.

Question 27

If a male complainant is forced to penetrate a females vagina what is the offence.

Answer 27

Sexual violation by unlawful sexual connection by the female,

under s128(1)(b) the roles are not specified in terms of who is penetrated and who does the penetrating. Therefore, for example, it may be the offender who is penetrated by the complainant.

Question 28

Intent defined and case law

Answer 28

Intent is a deliberate act to get a specific result.

R v Collister - there are two types of intent, an intent to do an deliberate act and an intent to get a specific result.

Intent can be inferred by the words and actions before during and after, the surrounding circumstances and the nature
of the act itself.

Question 29

Definition and Case Law for Genitalia

Answer 29

Genitalia include the penis and testicals of a male and the vulva and vagina of a female. Surgically constructed or reconstructed Genitalia are included in the definition.

R v Koroheke

The Genitalia comprise the reproductive organs, interia and exterior of the Vagina including the vulva. Labia and opening.

Question 30

Definition and Case Law for consent (X3)

Answer 30

Consent is a persons voluntary agreement to do something proposed or desired

R v Cox

Consent must be full, free and voluntary made from a person in a position to make an informed and rational decision

R v Gutuama

No reasonable person in the defendants shoes would have believed that the complainant was consenting

R v Koroheke

It is important to distinguish the difference between a person that is given full consent to an act to that of a person submitting due to the circumstances at that time.

Question 31

Definition and Case Law for an attempt

Answer 31

The actions must have progressed past the stage of preparation and started a process intended to lead to the commission of a full offence

R v Harpur

Individual acts viewed in isolation may not constitute an offence however the same acts viewed as a whole could constitute a substantial step which constitutes an attempt of the commission of an offence.

Question 32

Definition and Case Law for consent of a child (X2)

Answer 32

There is no cut off from when a person is believed to be able to give true consent. The difference must be clear between a child that is truly consenting to one that is simply compliment.

Cox v R

It would be in exceptional and extraordinary circumstances that a person under 12 years old could truly consent to sexual intercourse. No reasonable person would believe under reasonable grounds that a person under 12 was truly consenting.

R v Gutuama

No reasonable person in the defendants shoes would believe that the complainant was consenting.

Question 33

Definition and Case Law (proving age) for Child and Young person

Answer 33

A child is a person under 12, a young person is a person under 16

R v Forrest and Forrest

The best evidence to prove the complainants age is a birth certificate accompanied by independent evidence from the complainant and he birth parents.

Question 34

Definition and Case Law of indecency

Answer 34

An act that is indecent has Sexual connotations and offensive to public moral values

R v Court

Conduct that people will consider an affront to the sexual modesty of the complainant

Question 35

Definition and Case Law for Indecently assaults

Answer 35

Defined by Case Law

R v Leeson

An Assault accompanied by circumstances of indecency

Question 36

Rape elements broken down in Liability

Answer 36

• Penetration
• of persons genitals
• by another’s penis
• without consent
• without believing on Reasonable Grounds there was consent
• intent

Question 37

Unlawful Sexual Connection elements broken down for liabilities

Answer 37

• The introduction into a persons Genitals or Anus, other for genuine medical purposes, part of another persons body or object manipulated by part of a persons body or connection of a persons mouth or tongue with another’s genitals or anus
• Penetration/introduction same meaning
• consent
• no belief in consent or was unreasonable

Question 38

Case Law - Genitals
R v Koroheke

Answer 38

The Genitals comprise the reproductive organs, interior an exterior including the vulva and the labia, both interior and exterior, at the opening of the Vagina

Question 39

Case Law - Consent
R v Cox

Answer 39

Consent must be full, free and voluntary made by a person in a position to make an informed and rational decision

Question 40

Case Law - Consent
R v Gutuama

Answer 40

No reasonable person in the defendants shoes could have thought the complainant was consenting

Question 41

Case Law - consent
R v Koroheke

Answer 41

Its important to distinguish the difference between a person giving true consent and a person submitting due to believing they have no option but to submit

Question 42

Case Law - Attempt
R v Harpur

Answer 42

Actions viewed in isolation may not constitute an attempt however those actions viewed in collective could constitute a substantial step in the commission of a crime

Question 43

Case Law - Consent of a child
Cox v R

Answer 43

Even though it may be possible for a person under 12 to give full consent, it is very rare and would be unreasonable for a person to believe a person under 12 was consenting

Question 44

Case Law - Child or Young Person
R v Forrest and Forrest

Answer 44

The best evidence for proof of age is a birth certificate accompanied by independent evidence from the complainant or birth parent

Question 45

Case Law - Indecent
R v Court

Answer 45

Conduct that right thinking people will consider an affront to the sexual modesty of the complainant

Question 46

Case Law - Indecent Assault
R v Leeson

Answer 46

An Assault accompanied by circumstances of indecency

Question 47

Outline Section 44(1), 44(2) and 44(3) of the Evidence Act 2006:

Answer 47

· 44(1) In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any other person other than the defendant, except with permission of the judge
· 44(2) In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters
· 44(3) In an application for permission under subsection (1), the judge must not grant permission unless satisfied that the evidence or question is of sufficient direct relevance to the facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.

Question 48

Making a sexual assault victim feel secure in there environment - CALM TEA

Answer 48

C - Conduct with respect
A - Always accept they are telling the truth
L - Listen to what they have to say
M - Medical treatment if required

T - Treat them courteously
E - Explain the procedure
A - Advise about support services