Sexual Violation Flashcards
What is sexual violation?
Sexual violation is non-consensual sexual connection with another person
Rape is ….
Sexual violation that involves the non-consensual penetration of the complainants’ genitalia by the offenders penis
Unlawful sexual connection includes any form of?
Non-consensual penetration or oral connection with persons genitalia or anus.
What must the crown prove in all cases of sexual violation beyond reasonable doubt?
-There was an intentional act by the offender involving sexual connection with the complainant.
-The complainant did not consent to the sexual act.
-The offender did not believe that the complainant was consenting.
-If the offender did believe the complainant was consenting, the grounds for such belief were not reasonable.
What is section 128(4) - Legal defence for married couples?
Makes it clear that a spouse who sexually violates their spouse has no legal defence due to the fact that the couple are legally married (before 1986, a man may have had such a defence).
Two reasons why the courts think a person should not be sent to prison?
a) The particular circumstances of the person convicted; and
b) The particular circumstances of the offence, including the nature of the conduct constituting it.
Under Section 128(1) - sexual violation is the act of a person who?
Sexual violation is the act of a person who rapes another person or has unlawful sexual connection with another person.
Section 128 (2) - Definition of rape?
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, without believing on reasonable grounds that person B was consenting to the connection.
Section 128 (3) - Definition of 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 without believing on the reasonable grounds that person B consents to the connection.
What is section 128 (4) - Defence of a person - sexual violation when married?
One person may be convicted of the sexual violation of another person at a time when they were married to each other.
What is the Definition of sexual connection under section 2, crimes Act 1961?
a) Connection by the introduction into the genitalia or anus of one person, a part of the body of another person or, an object held or manipulated by another person, otherwise for medical purposes.
b) Connection between the mouth or tongue of one person and a part of another person’s genitalia or anus or,
c)The continuation if connection of a kind described in a) and b).
Penetration and introduction have the same meaning?
“Introduction into” in the definition of sexual connection.
“Penetration” in the definition of rape.
No difference, not necessary to differentiate between the two.
Proof of penetration may be established by?
- The complainant’s evidence.
- Medical examination, including physical injuries and DNA evidence.
- The Defendants admissions.
Definition of Genitalia?
Includes a surgically constructed or reconstructed organs analogous to naturally occurring male or female genitalia (whether the person concerned is male, female or of indeterminate sex.)
R V Koroheke
Genitalia
The genitalia comprise the reproduction organs, interior or exterior, the vulva and the labia bother interior or exterior at the opening of the vagina.
Definition of 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).
Penetration of the anus and appropriate charge?
Non-consensual penile penetration of the anus is not rape, the appropriate charge would be one of - sexual violation by unlawful sexual connection under 128 (1)(b).
Examples of objects held and manipulated?
Applies to anything other than a part of his body, used by the offender to penetrate the complainants genitalia or anus - e.g vibrator, deodorant bottle or other hand held objects.
What is R v Kaitamaki?
(Continuation)
A man broke into a young womans house and raped her twice, claiming it was only during the second act of intercourse that he became aware she was not consenting. He admitted however that he had continued regardless.
What is Section 127 - No presumption because of age?
There is no presumption of law that a person is incapable of sexual connection because of his/her age. This means that 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 charge to that either of the parities was too young or too old to have sexual connection.
Case law for Consent
R v Cook
R v Cox
Case law
R v Cook
The court held that to be effective, consent must be “real genuine or true consent, and that it may be conveyed by words or conduct or both”
Case Law
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.
Establishing that a sexual connection was unlawful involves a mixed subjective/objective test in relation to consent; the crown must prove that?
-The complainant did not consent to the sexual act. (subjective test)
-The offender did not believe that the complainant was consenting. (subjective test)
-If the offender did believe the complainant was consenting, the grounds for such belief were not reasonable. (objective test)
