Sexual Violation

Question 1

What is sexual violation?

Answer 1

Sexual violation is non-consensual sexual connection with another person

Question 2

Rape is ….

Answer 2

Sexual violation that involves the non-consensual penetration of the complainants’ genitalia by the offenders penis

Question 3

Unlawful sexual connection includes any form of?

Answer 3

Non-consensual penetration or oral connection with persons genitalia or anus.

Question 4

What must the crown prove in all cases of sexual violation beyond reasonable doubt?

Answer 4

-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.

Question 5

What is section 128(4) - Legal defence for married couples?

Answer 5

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).

Question 6

Two reasons why the courts think a person should not be sent to prison?

Answer 6

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 7

Under Section 128(1) - sexual violation is the act of a person who?

Answer 7

Sexual violation is the act of a person who rapes another person or has unlawful sexual connection with another person.

Question 8

Section 128 (2) - Definition of rape?

Answer 8

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.

Question 9

Section 128 (3) - Definition of sexual connection?

Answer 9

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.

Question 10

What is section 128 (4) - Defence of a person - sexual violation when married?

Answer 10

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

Question 11

What is the Definition of sexual connection under section 2, crimes Act 1961?

Answer 11

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).

Question 12

Penetration and introduction have the same meaning?

Answer 12

“Introduction into” in the definition of sexual connection.
“Penetration” in the definition of rape.

No difference, not necessary to differentiate between the two.

Question 13

Proof of penetration may be established by?

Answer 13

1. The complainant’s evidence.
2. Medical examination, including physical injuries and DNA evidence.
3. The Defendants admissions.

Question 14

Definition of Genitalia?

Answer 14

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.)

Question 15

R V Koroheke

Answer 15

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.

Question 16

Definition of penis?

Answer 16

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).

Question 17

Penetration of the anus and appropriate charge?

Answer 17

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).

Question 18

Examples of objects held and manipulated?

Answer 18

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.

Question 19

What is R v Kaitamaki?
(Continuation)

Answer 19

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.

Question 20

What is Section 127 - No presumption because of age?

Answer 20

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.

Question 21

Case law for Consent

Answer 21

R v Cook
R v Cox

Question 22

Case law
R v Cook

Answer 22

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”

Question 23

Case Law
R v Cox

Answer 23

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

Question 24

Establishing that a sexual connection was unlawful involves a mixed subjective/objective test in relation to consent; the crown must prove that?

Answer 24

-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)

Question 25

What is reluctant consent?

Answer 25

R V Herbert - the concept of reluctant consent was discussed. The court held that a true consent may be given reluctantly or hesitantly and may be regretted afterwards, but if the consent is given in such a manner provided it is without fear of the application of force or the result of actual or threatened force, then the act of sexual connection would not be rape.

Question 26

Subjective test - absence of consent ‘the crown must prove?”

Answer 26

The complainant did not consent to the sexual act (subjective test).

Question 27

What is the subjective test - belief in consent?

Answer 27

The offender did not believe that the complainant was consenting (subjective test)

Question 28

Objective test - reasonable ground for belief in consent is?

Answer 28

If the offender did believe the complainant was consenting the grounds for such belief were not reasonable (Objective test).

Question 29

Case Law
R v Gutuama

Answer 29

Under the objective test the crown must prove that no reasonable person in the accused shoes would think there was consent.

Question 30

When is consent relevant?
R v Adams

Answer 30

R V Adams the court held and discussed this matter found that “the material time when consent, and belief in consent, is to be considered is at the time the act actually took place.

The complainant’s behavior and attitude before or after the act itself may be relevant to that issue, but it’s not decisive.

The real point is whether there was a true consent, or a reasonably based belief in consent, at the time the act took place.

Question 31

Section 128A - Allowing sexual activity does not amount to consent in some circumstances.
A person does not consent to sexual activity when ….

Answer 31

1)Does not Protesting or offer physical resistance to the activity.
2)Allows the activity due to force, threat and fear of application of force
3) Is asleep or unconscious
4)Affected by drugs or alcohol
5)Mental or physical impairment.
6)Mistaken ID
7)Mistake as to the nature or quality of the act.

Question 32

What is lack of protest or resistance of a person consenting?

Answer 32

A lack of protest or resistance does not mean a person is consenting, even if the lack of consent has not been communicated to the defendant; what is relevant is the complainants state of mind.

The fact that the complainant’s lack of consent has not been communicated to the defendant may, however be relevant to whether he believed she was consenting and whether that belief was reasonable.

Question 33

What is force, threat or fear of force?