Sexual Violation

Question 1

What must be proved in all of Sexual Violation cases

Answer 1

Crown must prove beyond reasonable doubt that:

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

Question 2

Sexual Violation

Crimes Act 1961, Section 128B

Answer 2

Sexual Violation
Section 128B
(1) not exceeding 20 years
(2) A person convicted of sexual violation must be sentenced to imprisonment unless, having regard to the matters stated in subsection (3), the court thinks the person should not be sentenced to imprisonment
(3) The matters are -
(a) the particular circumstances of the person convicted; and
(b) the particular circumstances of the offence, including the nature of the conduct constituting it.

Question 3

Sexual Violation (defined)
Crimes Act 1961, Section 128

Answer 3

(1) Sexual Violation is the act of a person who -
(a) rapes another person; or
(b) has unlawful sexual connection with another person

(2) 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, -
(a) without person B’s consent to the connection; and
(b) without the believe on reasonable grounds that person B consents to the connection

(3) Person A has unlawful sexual connection with person B is 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.

(4) One person may be convicted of the sexual violation of another person at a time when they are married to each other.

Question 4

Proof of penetration

Answer 4

May be established by:

• the complainants evidence
• medical examination, including physical injuries and DNA evidence
• the defendants admissions

Question 5

R v Koroheke

Answer 5

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.

Question 6

Section 127, Crimes Act 1961

No presumption because of age

Answer 6

There is no presumption of law that a person is incapable of sexual connection because of his or her age.
This means that any person of any age is capable, in a legal sense, of being involved in sexual connection.

Question 7

The Crown must prove:

consent

Answer 7

• 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 8

R v Cox - Consent

Answer 8

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 judgment’.

Question 9

Proof of consent

Answer 9

The crown must prove that the complainant was not consenting to the sexual act at the time it occurred - it is not for the defendant to prove.

Question 10

Subjective Test

Answer 10

Once it is established the complainant was not consenting the next thing is whether or not the defendant believed he/she was consenting at the time. This is purely subjective test from the defendants point of view.

Question 11

Objective test

Answer 11

The objective test: what would a reasonable person have believed if placed in the same situation as the defendant?

Objective test is to determine whether there was a reasonable basis for his/her belief.

Question 12

R v Gutuama

Answer 12

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’

Question 13

Invalid Consent

Section 128A, Crimes Act 1961

Answer 13

Section 128A
A person does not consent to sexual activity -

(1) Just because he or she does not protest or offer physical resistance to the activity.

(2) If he or she allows the activity because of-
(a) force applied to him or her or some other person
(b) the threat (express or implied) of the application of force to him or her or some other person
(c) the fear of application of force to him or her or some other person

(3) if the activity occurs while he or she is asleep or unconscious
(4) if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity
(5) if the activity occurs while he or she is affected by an intellectual, mental or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity
(6) One . . . with another person is he or she allows the sexual activity because he or she is mistaken about who the other person is
(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.
(8) This section does not limit the circumstances in which a person does not consent to sexual activity

Question 14

Section 128A (9), Crimes Act 1961

Answer 14

128A (9)
For the purpose of this section-
allows includes acquiesces in, submits to, participates in, and undertakes sexual activity, in relation to a person means -
(a) sexual connection with the person; or
(b) the doing on the person of an indecent act that, without the person’s consent, would be an indecent assault of the person

Question 15

R v Koroheke

Answer 15

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 16

Asleep or unconscious
Section 128A(3)

Answer 16

The complainant is asleep or unconscious is non-consensual based on the fact that the relevant time for consent is the time of the sexual activity

Question 17

Affected by alcohol or drugs
Section 128A(4)

Answer 17

Consent is not invalid simply because the person is intoxicated. The question is whether they were affected to such an extent that they were incapable of understanding situation and giving rational or reasoned consent

Question 18

Intellectual, Mental or physical impairment

128A(5)

Answer 18

A person’s consent is in question due to impairment, the issue is whether the impairment was sufficiently severe so as to deprive the complainant of the capacity to give or withhold consent

Question 19

Mistake as to identity

128A(6)

Answer 19

The complainants consent is nullified if it is based on the mistaken identity of the other person.

The mistake is one made by the person submitting to the sexual connection, not a mistake by the defendant.

Question 20

Mistake as to nature and quality of the act

128A(7)

Answer 20

Consent is nullified when the complainant was unaware of the true nature of the physical act to which they were agreeing.
Such mistakes are limited to the physical nature of the sexual connection.

Question 21

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

Answer 21

Sexual Violation
128(1) Sexual violation is the act of a person who-
(a) rapes another person

Question 22

Crimes Act 1961
Section 128(2)

Answer 22

Sexual Violation Defined

(2) Person A rapes person B is person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis -
(a) without person B’s consent to the connection; and
(b) without believing on reasonable grounds that person B consents to the connection.

Question 23

(Consent) Subjective Test

Answer 23

The presence or absence of consent from the complainants point of view.

Question 24

(Consent) Subjective & Objective Test

Answer 24

Did the accused believe the complainant was consenting at the time. (Subjective)

What a reasonable person would think. (Objective)
Objective test is applied to determine whether there was a reasonable basis for his/her belief.

Question 25

Crimes Act 1961
Section 128(1)(b)

Answer 25

(1) Sexual violation is the act of a person who-

(b) has unlawful sexual connection with another person

Question 26

Crimes Act 1961, Section 128(3)

Sexual violation defined

Answer 26

(3) Person A has unlawful sexual connection with person B if person A has sexual connection with person B -
(a) without person B’s consent and
(b) without believing on reasonable grounds that person B consents to the connection

Question 27

Sexual Connection Types {128(1)(b)}

Answer 27

• penetration of a person’s genitalia or anus by a part of another person’s body
• penetration of a person’s genitalia or anus with an object held or manipulated by another person
• touching of a person’s genitalia or anus by another person’s mouth or tongue

Question 28

Sexual Violation by Rape (Act & Section)

Answer 28

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

Question 29

Sexual violation by unlawful sexual connection (Act and Section)

Answer 29

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

Question 30

Crimes Act 1961, Section 129

Attempted Sexual Violation

Answer 30

Section 129
(1) Everyone who attempts to commit sexual violation is liable not exceeding 10 years

(2) Everyone who assaults another person with the intent to commit sexual violation of the other person is liable not exceeding 10 years

Question 31

To be guilty of attempts

Answer 31

Person must:

• intend to commit an offence and
• take a real and substantial step towards achieving that aim

The Crown must prove that the defendant intended to commit the full act of sexual violation and acted as he did for the purpose of achieving that aim.

Question 32

Intent

Answer 32

Deliberate act or omission

intent to Specific result

Question 33

Proving Attempt Sexual violation

Answer 33

the Crown must prove that at the time of the defendants conduct they:

• intended to have sexual connection with the complainant and
• the complainant did not consent to the intended sexual connection and
• the defendant did not believe on reasonable grounds that the complainant was consenting

Question 34

R v Harpur (Attempt)

Answer 34

An attempt includes ‘an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime’.

Question 35

R v Harpur (Sufficiently Proximate)

Answer 35

‘The Court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. . . the defendant’s conduct may be considered in its entirety. Considering how much remains to be done . . is always relevant, though not determinative.’

Question 36

Assault with Intent to commit sexual violation

Answer 36

Crimes Act 1961, Section 129(2)

Everyone assaults another person with intent to commit sexual violation of the other person.

Question 37

Assault (with intent to sexually violate)

Answer 37

Section 129(2) requires proof of an assault. 
The assault need not be indecent nature provided it is done with the intention of and for the purpose of committing sexual violation

The person assualted must be the intended complainant of sexual violation

Question 38

Intent (129(2))

Answer 38

The Offender may assault the victim:

• in the hope that the complainant will then change their mind and consent to the act or
• intending to commit rape or sexual connection regardless of whether the complainant changes their mind

Question 39

Mens Rea - Assault with intent to commit sexual violation - 129(2)

Answer 39

It must be proved at the time the defendant assaulted the complainant he:

• intended to have sexual connection with the complainant and
• the complainant did not consent to the sexual connection and
• the defendant did not believe on reasonable grounds that the complainant was consenting