Sexual Violation Flashcards
What are the two sexual violation ?
Rape
Having unlawful sexual connection
Sexual violation by rape requires ….
Penetration by the penis of the complainants genitalia.
Sexual violation by unlawful sexual connection can occur in …
3 different ways
- Penetration of the complaints genitalia or anus
- Connection between the Defendants mouth or tongue and the complainants genitalia or anis
- Connection between the complaints mouth or tongue and the Defendant genitalia or anus
What is the section, elements and act for Sexual Violation By Rape ?
S128 (1)(a)
CA 1961
A person
Rapes
Another person
What is the section, elements and act for Sexual Violation by unlawful sexual connection ?
S128(1)(b)
CA 1961
A person
Having unlawfully sexual connection
Another person
For a rape charge you need ….
A person with a penis and a person with a vagina
Without consent
What must prosecution prove beyond reasonable doubt that ?
- Intentional act by offenders involving sexual connection with the complaint
AND
- The compliant did not consent to the sexual act
AND
- The offender did not believe the complaint was consenting
OR
- If he did believe she was consenting, the grounds for such a belief were not reasonable
Definition penetration
Affected by the slightest degree
Proving Penetration may be established by:
- The complainants evidence
- Medical examination, including physical injuries and DNA evidence
- The Defendants admission
Definition of Genitalia ?
Compromise the reproduction organs, interior and exterior
PENIS - Male
VAGINA - R v Koroheke Reproduction organs internal/external, including the vulva and labia both internal and external at the opening of the vagina
Includes - surgical constructed or reconstructed genitalia
Definition of Consent ?
Consent is a persons conscious and voluntary agreement to something desired or proposed by another.
Case Law for consent
R v Cox
Full, voluntary, free and informed. Freely and voluntary given by a person to form rational judgement
R v Koreheke
Consent given freely, rather than submission to something unwanted or avoidable
R v Gutuama
No reasonable person would think there was consent
What is S128 and give e.g ?
Matters not constituting consent
- Lack of protest or resistance (Complaints state of mind that matters)
- Force, threat or fear of force (R v Koroheke)
- Asleep or unconscious
- Affected by alcohol or drugs
- Intellectual, mental, or physical impairment
- Mistake as to I.D
- Mistake as to nature and quality of Act
What sub section to consider for when talking about rape ?
- Penetration
- Genitalia (Penis)
- Consent
- Defence Consent
Subjective Test - what was the complaint thinking ?
Subjective Test - the complaint did not give consent
Objective Test - no reasonable person if the accused shoes could have thought that Victim was consenting
What is the section, elements and act for Sexual conduct with a child under 12 ?
S132
CA1961
A person
Has sexual connection
With a child
What is outlined in S132?
It is not a defence
- Person believed that the child was or over the age of 12 years
- Child consented
Definition of Child ?
Child means a person under the age of 12 years old
Case Law for child ?
R v Forest v Forest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age
What are the 3 different ways of sexual connection ?
Penetration of the complaints genitalia or anus (by body part or object held)
Connection between the defendant mouth or tongue and the complaints genitalia or anus
Connection between the complaints mouth or tongue and the defendants genitalia or anus
What is S127 ?
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 charged to say either party was too young or too old to have sexual connection
S134A Defence to Charge …
Taken reasonable steps to ascertain that the young person was at least 16
AND
They believed on RG that the person was at least 16
AND
The younger person consented
S128A - circumstance where consent doesn’t count
Resist or lack of protesting
Asleep or unconscious
Affected by alcohols or some drug where they cannot give consent or refuse
Mistake ID
Mistaken by nature or quality of the act
Intellectual, Mental of physical condition or impairment
Threat, force or fear of force
RAMIT
