Sexual Violation Flashcards
What must the crown prove in sexual violation
There was an intentional act by the offender involving sexual connection with complainant
And
Complainant didn’t consent to sexual act
And
Offender didn’t believe complainant consented
Or
Offender did believe complainant consented but the grounds were not reasonable
What does the investigation have to prove in sexual violation
Defendant knew he didn’t have victims consent but acted anyway (men’s rea)
Or
Defendants grounds for belief of victim consent were unreasonable
What does section 128(4) state
Husband has no legal defense if he sexually violates wife as they’re married after 1986
Section 128(B)
1) everyone who commits sexual v liable to 20 yrs
2) must be sentenced to imprisonment unless 3) applies
3) regard for the particular circumstances of the person and the offense including nature of offense
S128(1)
Sexual violation is act of a person who
a) rapes another person or
b) has unlawful sexual connection with another person
S128(2)
Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person Bs genitalia by person As penis
a) without person Bs consent to the connection
And
b) without having reasonable grounds that person B consents to the connection
S128(3)
Person A has unlawful sexual connection with person B if person A has sexual connection with person B
a) without person Bs consent to the connection
And
b) without believing on reasonable grounds that person B consented to the connection
S128(4)
One person can be convicted of sexual violation of another person if they were married to each other at the time
What’s definition of sexual connection and act section
S2CA
Connection effected by the introduction into the genitalia or anus of one person otherwise than for on medical grounds of
i) 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 persons genitalia or anus
Or
c) the continuation of connection as described in para a or b
What extent of penetration os nec to prove penetration ( introduction)
S2 (1A) CA1961
For purposes of s1(a) definition of sexual connection; introduction to the slightest degree is enough to effect a connection
Therefore the extent of penetration is irrelevant any degree of penetration no matter how slight or fleeting is sufficient
How may Proof of penetration be established
The complainants evidence
Medical exam incl phys injuries or DNA
Defendants admissions
What’s definition of genitalia and section
S2 CA 1961
Genitalia includes a surgically constructed or reconstructed organ analogous to the naturally occurring male or female genitalia ( whether female male or indeterminate sex)
R v koroheke
The genitalia comprises the reproduction organs interior and exterior
They include the vulva and labia and both interior and exterior at the opening of the vagina
What’s definition of penis
S2 CA 1961
Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis ( whether the person concerned is male female or indeterminate sex)
Description of object held or manipulated
Any object other than a part of the body
When would a Dr medical exam amount to sexual violation
If it was for sexual gratification on the presence of medical purposes
Penetration of mouth or tongue
Any touching of persons anus or genitalia by mouth or tongue is sufficient not nec penetration
What does continuation of connection cover
Captures situations where sexual activity starts co sensually but consent withdrawn later
Failure to stop may render act unlawful
What is the presumption in s127
No defense or presumption of law that a person is incapable of sexual connection bec of age
Therefore no defense the person is too old or young
In negating consent what must the crown prove
Complainant didn’t consent to sexual act ( subjective test)
And
Offender didn’t believe complainant was consenting (subjective test)
Or
If he did believe complainant consented, the grounds for such a belief were not reasonable (objective test)
What is consent
A persons conscious and voluntary agreement to something desired or proposed by another
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
What does the defendant have to prove in relation to consent
Nothing
It is up to crown to prove complainant wasn’t consenting to sexual act at time
What is the objective test in relation to proving consent
What would a reasonable person have believed if placed in same position as defendant
Gautama
R v Gautama
Under the objective test the crown must prove that no reasonable person in accused shoes could have thought complainant consented
Can a person be reckless as to whether a person consents
No recklessness is not consistent with having a reasonable belief in consent
Explain s128A matters not constituting consent
Does not protest or offer physical resistance
Allows activity bec force applied a threat of force or fear of force
Whilst asleep unconscious
Affected by alcohol drugs so they can’t consent
Affected by intellectual mental physical condition of a nature that they can’t consent
Mistaken identity
Mistaken about nature quality of act
R v koroheke relating to freely given consent
It’s important to distinguish between consent that’s freely given and submission by a woman to what she regards as unwanted but unavoidable
Example submission by woman bec frightened of what might happen if she doesn’t cooperate isn’t true consent
If the threshold for sexual violation hasn’t been met in person with disability what alternate charge
S 138 sexual exploitation of person with significant impairment
Definition of person
Gender neutral Proven by judicial notice or circumstantial evidence
What is the penalty for section 128 (1)
20 yrs
What is the principle diff between rape n unlawful sexual connection
Rape is defined solely as penetration of genitalia by penis
Unlawful s c captures all forms of non consensual sexual connection other than those amounting to rape
