Sexual Violation Flashcards
In general terms what is sexual violation?
Non-consensual sexual connection with another person
s128(1) defines sexual violation in two classes, name them.
Sexual Violation by rape
Sexual violation by unlawful sexual connection
Name four things that must be proved beyond reasonable doubt in all cases of sexual violation
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
Two things that investigation must prove that either
Defendant knew they didn’t have victims consent but continued anyway, or,
The defendants grounds for believing that victim consented was unreasonable
What does s128(4) state?
No legal defence for sexual violation due to marriage
s128B Sexual Violation
(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
Section 128 Crimes Act 1961
Sexual violation defined.
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
Section 2 Interpretation
Sexual connection means
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
Introduction into…
Same as penetration, not necessary to differentiate
Slightest degree of penetration is sufficient to effect a connection
Penetration must be proved but extent is irrelevant, any degree of penetration no matter how slight is sufficient
Proving penetration, established by?
Complainants evidence
Medical examination
Defendant’s admissions
Genitalia
Organs of generation
Penis and vulva/vagina
Adlai now includes surgically reconstructed genitalia
Continuation…what does this mean?
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)
Section 127 No presumption…
Because of age….
Any person of any age is capable (in legal sense) of being involved in sexual connection
What make Sex Conn unlawful?
(3 things)
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
Consent - 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 judgement
And
R v Cook
Consent must be real, genuine, true conveyed by words, conduct or both
Subjective test
What was the complainant thinking at the time?
Crown must prove that complainant was not consenting at the time it occurred.
Objective test
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?
R v Gutuama
…no reasonable person in the accused’s shoes could have thought the complainant was consenting
Invalid consent
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
Lack of Protest -
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.
Force, threat or fear of force, when is consent negated?
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.
R v Koroheke
Important to distinguish consent that is freely given and submission by a woman to what she may regard as unwanted, but unavoidable.
Sexual violation by rape
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
Consent definition
Conscious and voluntary agreement to something desired or proposed by another.
Evidence
Section 44(1) Evidence Act 2006
No evidence can be given and no question asked about a complainants sexual experience
Evidence
Section 87(1) Evidence act 2006
and
Section 88(1) Evidence Act 2006
Privacy as to precise particulars of a witnesses address.
Restriction on disclosure of victims occupation
Evidence
S121 Evidence Act 2006
Corroboration
Not necessary in criminal proceedings for the evidence to be corroborated by decor for:
Perjury
False oaths
False statements
Treason
Previous consistent statements rule
Section 35
Only admissible if necessary to respond to a challenge to the witnesses veracity or accuracy
Recorded interviews
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
L3 specialist interviewers
Should be used wherever possible for serious offences
