Sexual Violation Flashcards
Sexual Violation by Rape
Crimes Act 1961 Section 128(1)(a)
A person rapes another person
20 Years Imprisonment
Rape
Crimes Act 1961 Section 128(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
20 Years Imprisonment
Penetration
Crimes Act 1961 Section 2 (1a)
Introduction and Penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection
Proof of Penetration
Proof may be provided by:
Complainants Evidence
Medical Examination
Accused Admissions
Genitalia
The Genitalia or genitals include the penis and testicles of a male and the vagina and vulva of a female
Genitalia includes surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether person concerned is male female or of indeterminate sex
R v Koroheke
Genitalia comprise the reproductive organs interior and exterior, includes the vulva and labia both interior and exterior at the opening of the vagina
Penis
The male organ of reproduction
Includes a surgically constructed or reconstructed organ analogous to naturally occurring penis (whether the person concerned is male, female or of indeterminate sex
Non Consent under Certain Circumstances
Crimes Act 1961 Section 128A
Matters that do not constitute consent:
Person does not consent to sexual activity under certain circumstances:
- Not protesting or offering physical resistance use of force, threats of force or fear of force
- So affected by alcohol / drugs cannot consent
- So affected by mental or physical impairment they can not consent
- Mistaken Identity, Asleep or Unconscious
- Mistaken as to nature & quality of the Act
Reasonable Grounds
Three Step Process:
1) Subjective Test: Absence of consent, what was complainant thinking at time? Was she consenting?
2) Subjective Test Belief in Consent, if she consenting, did offender believe she was consenting? What was the offender thinking at the time?
3) Objective Test: Reasonable Grounds to believe consent. If offender believed complainant was consenting was the belief reasonable in the circumstances re: what would a reasonable person have believed if placed in same position as defendant
R v Gutuama
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
Sexual Violation by Unlawful Sexual Connection
Crimes Act 1961 Section 128(1)(b)
A person has unlawful sexual connection with another person
20 Years Imprisonment
Unlawful Sexual Connection
Crimes Act 1961 Section 128(3)
Person A has unlawful sexual connection with person B if person 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 was consenting to the connection
Sexual Connection
Crimes Act 1961 Section 2
a) Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purpose of:
* A part of the body of another person or
* an object weldor manipulated by another persons genitalia or anus or
b) Connection btw the mouth or tongue of one person & part of another persons genitalia or anus or
c) Continuation of connection of a kind described on paragraph (a) or (b)
Connection
In case of oral sexual connection it is not necessary for there to be penetration, any touching of a persons genitalia or anus with another persons mouth or tongue is sufficient
Continuation
Definition of Sexual Connection includes “continuation of such acts capturing situations where sexual activity is started consensually but consent s later withdrawn
R v Kaitamaki - Continuation
If after he has penetrated a woman, a man realises that she is not consenting (or has never consented) but he continues…that act of intercourse becomes rape
Kidnapping
Crimes Act 1961 Section 209(a) or (b) or (c)
Unlawfully takes away or detains a person without his or her consent or with his or her consent obtained by fraud or with his or her consent obtained by duress with intent to hold him/her for ransom or service
b) Cause him/her to be confined or imprisoned or
c) Cause him/her to be sent or taken out of NZ
14 Years Imprisonment
Abduction
Crimes Act 1961, Section 208(a) or (b) or (c)
Unlawfully takes away or detains a person without his/her consent or with his/her consent obtained by fraud or with his/her consent obtained by duress with intent to
a) Marry him/her
b) Have sexual connection with him/her or
c) Cause him/her to be married or have sexual connection with some other person
R v Chartrand - Unlawfully
Without lawful justification, authority or excuse
R v Wellard - Kidnapping
The deprivation of liberty coupled with a carrying away from the place where the victim wants to be
R v Pryce - Detains
Active concept meaning to keep in confinement or custody
This is to be contrasted to the passive concept of “harbouring” or mere failure to hand over
R v Cox - Consent
Consent must be full, voluntary, free and informed. Freely and voluntarily given by a person in a position to form a rational judgement
R v Cort - Consent by Fraud
Consent obtained by misrepresentation of the facts or the offenders intentions
The complainants were carried away by fraud in the sense that they would not have got into Mr Corts car unless he had told them the lie he did
Pao On v Lau Yiu Long - Consent by Duress
Duress whatever form it takes is a coercion of the will so as to vitiate (invalidate) consent
R v Mohan - Intent
Intent involves a decision to bring about in so far as it lies within the accused’s power, the commission of the offence
R v Waaka - Intent
A fleeting or passing thought is not sufficient, there must be a firm intent or a firm purpose to effect an act
R v Mohi - Intent
Offence is committed at the time of the taking away so long as there is at the moment the necessary intent. Crown does nit need to show that the intent was carried out
Consent
A person’s conscious and voluntary agreement to do something desired or proposed by another
Consent - Section 209A Crimes Act 1961
A person under 16 years can not give consent to being taken away or detained
To obtain consent by Fraud
Consent obtained by misrepresentation of the facts or the offenders intentions
To obtain consent by duress
Consent obtained by actual or implied threat of force to the victim or another person or fear of the consequences if they refuse
Intent
A person does something intentionally if they mean to do it, they desire a specific result and act with the aim or purpose of achieving it
Person
Gender Neutral, Proven by Judicial Notice or Circumstantial Evidence
Attempted Sexual Violation
Crimes Act 1961 Section 129(1)
Any Person
Attempts
Sexual Violation
On another person
10 Years Imprisonment
Sexual Conduct with a Dependant Family Member
Crimes Act 1961, Section 131
1) Has sexual connection with dependant family member under 18 year
7 Years Imprisonment
2) Has attempted sexual connection with dependant family member under 18 years
7 Years Imprisonment
3) Does an indecent act with a dependant family member under 18 years
3 Years Imprisonment
4) dependant family member cannot be charged as party
5) Dependant family member cannot consent
Sexual Conduct with Child under 12
Crimes Act 1961, Section 132
1) Has sexual connection with child
14 Years Imprisonment
2) Attempted sexual connection with child
10 Years Imprisonment
3) Indecent Act on Child
10 Years Imprisonment
4) No defence of belief child over 12
5) No defence that child consented
6a) Child is under 12
b) Indecent act includes indecent assaults
Indecent Assault
Crimes Act 1961, Section 135
A person
Indecently Assaults
Another Person
7 Years Imprisonment
