Sexual Violation Flashcards
What must be proved?
- There was an intentional act including sexual connection
- The complainant did not consent to the sexual act, and
- The offender did not believe the complainant was consenting, or
- If he did believe she was consenting, the grounds for such a belief were not reasonable.
Sexual Violation by Rape - Section, Act, Penalty Ingredients and case law.
Section 128(1)(a) Crimes Act 1961 - 20 Yrs Imp
- A person
- Rapes
- Another person
R v Koroheke - (Genitalia)
R v Cox - (Consent)
R v Gutuama - (Reasonable Grounds)
A Person / Another Person
Gender natural, accepted by judicial notice or proved by circumstantial notice
Rapes - 9 Points to element
- Rape definition
- Penetration definition
- Genitalia (R v Koroheke)
- Penis definition
- Consent definition
- Consent (R v Cox)
- Subjective test - Step 1
- Subject test - Step 2
- Objective test - Step 3 (R v Gutuama)
Rapes
- 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 consented to the connection
Penetration
Introduction and penetration are the same thing.
Introduction to the slightest degree is enough to effect a connection. S2(1A) CA1961
Proof of Penetration
- The complainant’s evidence
- Medical examination (DNA, Injuries)
- Accused’s 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) S2 CA1961
Penis
Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female, or of indeterminate sex) S2 CA1961
Consent
Consent is a persons conscious and voluntary agreement to something desired or proposed by another.
Matters that do not constitute consent (7)
S128A CA1961
- Lack of protest of resistance
- Force, threat or fear of force
- Asleep or unconscious
- Affected by drugs/alcohol
- Intellectual/mental/physical impairment
- Mistake as to identity
- Mistaken as to the nature and quality of the act.
Subjective test - Step 1 - Absence of consent
Subjective test - Step 2- Belief in consent
Objective test - Step 3 - Reasonable grounds for belief in consent
Subjective: What was the complainant thinking at the time? Was she consenting?
Subjective: If she wasn’t consenting, did the offender believe she was consenting?
Objective: What would a reasonable person believe if placed in the same position as the defendant?
Sexual Violation by Unlawful sexual connection - Section, Act, Penalty Ingredients and case law.
Section 128(1)(b) Crimes Act 1961 - 20 Yrs Imp
- A person
- Has unlawful sexual connection
- With another person
R v Koroheke - (Genitalia)
R v Cox - (Consent)
R v Gutuama - (Reasonable Grounds)
Unlawful sexual connection
- Person A has unlawful sexual connection with person B if person A has sexual connection with person B
- Without person B’s consent to the connection; and
- Without believing on reasonable grounds that person B consents to the connection.
Unlawful Sexual Connection - 7 Points to element
- Unlawful Sexual Connection definition
- Genitalia (R v Koroheke)
- Consent definition
- Consent (R v Cox)
- Subjective test - Step 1
- Subject test - Step 2
- Objective test - Step 3 (R v Gutuama)
Sexual Connection
S2 CA1961
(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; (Eg.. Fingers) or
(ii) an object held or manipulated by another person; (E.g. Bottle) or
(b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; (E.g. Oral sex) or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b). (E.g withdrawn consent)
Section 2, Crimes Act 1961
Attempted Sexual Violation - Section, Act, Penalty Ingredients and case law.
Section 129(1) Crimes Act 1961 - 10 Yrs Imp
- Everyone who
- Attempts
- To commit sexual violation
R v Harpur - (Conduct)
S132(6)(a) CA1961
A child means a person under the age of 12 years.
S132(5) CA1961
Consent is no defence to a charge of sexual conduct with a child under 12.
S132(4) CA1961
It is not a defence to a charge of sexual conduct that the person charged believed that the child was of or over the age of 12 years.
Indecent Act
An act that is “indecent” has sexual connotations and involves conduct directed at a person that is offensive to public moral values.
of note:
It is immaterial whether the offender does the act on the child / child on offender / mutual.
S134(6)(a) CA1961
Young person means a person under the age of 16 years.
S134A CA1961
S134A is a defence to S134 CA1961.
(1)
- Taken reasonable steps to ascertain the YP was at least 16, and
- believed on reasonable grounds the YP was at least 16, and
- the YP consented
(2)
- NOT a defence if YP consents
- NOT a defence if believed YP of or over 16 yrs
ASSAULT WITH INTENT TO COMMIT SEXUAL VIOLATION
ASSAULT WITH INTENT TO COMMIT SEXUAL VIOLATION Section 129(2), Crimes Act 1961
A person
Assaults
Another person
With intent to commit sexual violation of the other person
Penalty: 10 yrs imp
SEXUAL CONDUCT WITH A CHILD UNDER 12
SEXUAL CONDUCT WITH A CHILD UNDER 12
Section 132, Crimes Act 1961
A person (1) Has sexual connection with (2) Attempts to have sexual connection with (3) Does an indecent act on A child
Penalty: 14 yrs imp
SEXUAL CONDUCT WITH A YOUNG PERSON UNDER 16
SEXUAL CONDUCT WITH A YOUNG PERSON UNDER 16
Section 134, Crimes Act 1961
A person (1) Has sexual connection with (2) Attempts to have sexual connection with (3) Does indecent act on A young person
Penalty: 10 yrs imp
INDECENT ASSAULT
INDECENT ASSAULT
Section 135, Crimes Act 1961
A person
Indecently assaults
Another person
Penalty: 7 yrs imp
