Sexual Violation

Question 1

Sexual Violation by Rape - Act and Section

Answer 1

Section 128(1)(a) Crimes Act 1961

Question 2

Sexual Violation by Rape - Elements

Answer 2

• A PERSON
• RAPES
• ANOTHER PERSON

Question 3

Sexual Violation by Unlawful Sexual Connection - Act and Section

Answer 3

Section 128(1)(b) Crimes Act 1961

Question 4

Sexual Violation by Unlawful Sexual Connection - Elements

Answer 4

• A PERSON
• HAS UNLAWFUL SEXUAL CONNECTION
• WITH ANOTHER PERSON

Question 5

Define Rape

Answer 5

Rape (S128) = Person A has sexual connection with Person B effected by the penetration of Person A’s penis into Peron B’s genitalia w/o Person B’s consent AND w/o believing on R/G Person B consented

Question 6

Define Sexual Connection

Answer 6

Sexual connection means-
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of-
(i) a part of the body of another person; or
(ii) an object held or manipulated by another person; or

(b) connection between the mouth or tongue of one person and a part of another person’s
genitalia or anus; or

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

Question 7

Difference between Introduction into/penetration

Answer 7

In practice there is no difference, and it is not necessary to differentiate between the two terms.

Question 8

What degree of penetration is required to prove a penetration of the genitalia or anus?

Answer 8

The extent of penetration is not relevant; any degree of penetration, no matter how slight or fleeting, is sufficient.

Question 9

Define Genitalia

Answer 9

Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female, or of indeterminate sex)

Question 10

What was held in R v Koroheke in relation to Genitalia?

Answer 10

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.

If a part of the offenders body or object held by them is between the coplainant’s labia to the slightest degree, it will constitue penetration.

Question 11

What evidence is used to prove penetration?

Answer 11

Proof of penetration may be established by:
* the complainant’s evidence
* medical examination, including physical injuries and DNA evidence
* the defendant’s admissions.

Question 12

What must be proved in Sexual Connection in relation to the mouth or tongue?

Answer 12

In the case of oral sexual connection it is not necessary for there to be
penetration; any touching of a person’s genitalia or anus with another
person’s mouth or tongue is sufficient.

Question 13

What does “No presumption because of age” mean

Answer 13

There is no presumption oflaw that a person is incapable of sexual connection because of his
or her age.

This provision 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 say that either
of the parties was too young or too old to have sexual connection.

Question 14

What is consent?

Answer 14

“Consent” is a person’s conscious and voluntary agreement to something
desired or proposed by another.

Question 15

What is the case law for consent?

Heaps of cocks

Answer 15

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”

No one would consent to heaps of cocks

Question 16

Subjective/Objective

What must the crown prove in relation to consent

Answer 16

• 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 17

What is the case law for the Objective test?

Answer 17

R v Gutuama 13/12/01, CA275/01
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”.

The objective test is: what would a reasonable person have believed

Recklessness as to whether the complainant is consenting or not is not
consistent with having a reasonable belief in consent.

Question 18

What is ‘reluctant consent’

Good to know - not need to know

Answer 18

In 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 even 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 19

What types of consent are considered invalid

Section 128A

Answer 19

Lack of protest or physical resistance
Force applied, threats or fear of force (To them or some other person)
Asleep or unconscious
Affected by drugs or alcohol
Intellectual, physical or mental impairment
Mistaken identity
Mistake about the nature or quality of the act

Question 20

Define a Person

Answer 20

The fact that the complainant is a person i generally accepted by Judicial Notice (JN) or proved by way of Circumstantial Evidence (CE). This is gender neutral, although in the case of rape, the complainant is almost always a female and the defendant male.