Sexual Violation

Question 1

In general terms what is sexual violation?

Answer 1

Non-consensual sexual connection with another person

Question 2

s128(1) defines sexual violation in two classes, name them.

Answer 2

Sexual Violation by rape
Sexual violation by unlawful sexual connection

Question 3

Name four things that must be proved beyond reasonable doubt in all cases of sexual violation

Answer 3

Intentional act by offender involving sexual connection with compl. And

Compl. Did not consent, And

Offender did not believe compl. Was consenting, or

If offender did believe the compl. Was consenting, the grounds for such a belief were unreasonable

Question 4

Two things that investigation must prove that either

Answer 4

Defendant knew they didn’t have victims consent but continued anyway, or,

The defendants grounds for believing that victim consented was unreasonable

Question 5

What does s128(4) state?

Answer 5

No legal defence for sexual violation due to marriage

Question 6

s128B Sexual Violation

Answer 6

(1) every who commits liable to imprisonment 20 years

(2) must be imprisoned unless, having regard to all matter, Court thinks shouldn’t be

(3) matters are: a) particular circumstances of person convicted and b) particular circumstances of offence

Question 7

Section 128 Crimes Act 1961
Sexual violation defined.

Answer 7

1 (a) rapes another person
1 (b) has unlawful sexual connection with another person

(2) person A rapes person B if sexual connection effected by penetration of person Bs genitalia by A’s penis
a) without person B’s consent
b) without believing on reasonable grounds that B consents to the connection

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

(4) Marriage is no defence

Question 8

Section 2 Interpretation
Sexual connection means

Answer 8

a) connection effected by the introduction into the genitalia or anus of one person (except for genuine medical purposes of

i) a part of the body of another person

ii) an object help or manipulated by another person

b) connection between mouth or tongue of one person and a part of another persons genitalia or anus or

c) the continuation of a kind described in paragraph a or b

Question 9

Introduction into…

Answer 9

Same as penetration, not necessary to differentiate

Question 10

Slightest degree of penetration is sufficient to effect a connection

Answer 10

Penetration must be proved but extent is irrelevant, any degree of penetration no matter how slight is sufficient

Question 11

Proving penetration, established by?

Answer 11

Complainants evidence
Medical examination
Defendant’s admissions

Question 12

Genitalia

Answer 12

Organs of generation

Penis and vulva/vagina

Adlai now includes surgically reconstructed genitalia

Question 13

Continuation…what does this mean?

Answer 13

Covers situations where sexual activity is started with consent but consent is later withdrawn.

Obligation to stop when one realises other person may not be willing

R v Kaitamaki (broke in, raped twice, only became aware on second rape no consent)

Question 14

Section 127 No presumption…

Answer 14

Because of age….

Any person of any age is capable (in legal sense) of being involved in sexual connection

Question 15

What make Sex Conn unlawful?
(3 things)

Answer 15

Crown must prove:

Compl. Did not consent

Off. Did not believe compl,. Was consenting - subjective

If he did, the grounds for that belief where unreasonable - objective

Question 16

Consent - R v Cox

Answer 16

Consent must be full, voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgement

And

R v Cook

Consent must be real, genuine, true conveyed by words, conduct or both

Question 17

Subjective test

Answer 17

What was the complainant thinking at the time?

Crown must prove that complainant was not consenting at the time it occurred.

Question 18

Objective test

Answer 18

If established compl. was not consenting, next question is whether def. Believed they were consenting at time. Ie, what was defendant thinking at the time

Was there a reasonable basis for this belief?

Question 19

R v Gutuama

Answer 19

…no reasonable person in the accused’s shoes could have thought the complainant was consenting

Question 20

Invalid consent

Answer 20

Allowing sex does not amount to consent in the following circumstances

Just because they do not protest or offer resistance

If they allow due to force, threats, fear

If they are unconscious or asleep

Affected by alcohol

If affected by intellectual mental or physical condition to such a degree

Mistaken identity

Mistaken about nature and quality

Question 21

Lack of Protest -

Answer 21

does not mean consent, what is relevant is what was in the compl. mind

However it may be relevant to whether he believed she was consenting and whether that belief was reasonable.

Question 22

Force, threat or fear of force, when is consent negated?

Answer 22

Consent to sexual activity is negated when the complainant experiences some degree of force, or is subject to a threat of force or fears that force may be used against them or another person, even if the force wasn’t actually used or threatened.

Question 23

R v Koroheke

Answer 23

Important to distinguish consent that is freely given and submission by a woman to what she may regard as unwanted, but unavoidable.

Question 24

Sexual violation by rape

Answer 24

S128(1)(a)

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

(a) rapes another person

S128(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 AB’s consent to the connection

(b) without believing on RG that B consents to the connection

Question 25

Consent definition

Answer 25

Conscious and voluntary agreement to something desired or proposed by another.

Question 26

Evidence
Section 44(1) Evidence Act 2006

Answer 26

No evidence can be given and no question asked about a complainants sexual experience

Question 27

Evidence
Section 87(1) Evidence act 2006
and
Section 88(1) Evidence Act 2006

Answer 27

Privacy as to precise particulars of a witnesses address.

Restriction on disclosure of victims occupation

Question 28

Evidence
S121 Evidence Act 2006

Answer 28

Corroboration

Not necessary in criminal proceedings for the evidence to be corroborated by decor for:

Perjury
False oaths
False statements
Treason

Question 29

Previous consistent statements rule

Answer 29

Section 35

Only admissible if necessary to respond to a challenge to the witnesses veracity or accuracy

Question 30

Recorded interviews

Answer 30

Courts have allowed use of video recording to minimise stress to the complainant and ensure that an account of events is recounted as close to the time of the offence as practicable

Question 31

L3 specialist interviewers

Answer 31

Should be used wherever possible for serious offences