Sexual Violation Flashcards
What must be proved?
- There was an intentional act by the offender involving a sexual connection with the complainant.
- The complainant did not consent to the sexual act, and
- The offender did not believe the complainant was consenting, or
- If he did believe she was consenting , the grounds for such a belief were not reasonable.
Sexual Violation by Rape - Section, Act, Penalty Ingredients and case law.
Section 128(1)(a) Crimes Act 1961 - 20 Yrs Imp
- A person
- Rapes
- Another person
R v Koroheke - (Genitalia)
R v Cox - (Consent)
R v Gutuama - (Reasonable Grounds)
A Person / Another Person
Gender natural, accepted by judicial notice or proved by circumstantial notice
Rapes - 10 Points to element
- Rapes
- Penetration
- Proof of Penetration
- Genitalia or Penis (R v Koroheke)
- Consent (R v Cox)
- Matters that do not constitute consent
- Establishing Reasonable Grounds
- Subjective test - Step 1
- Subject test - Step 2
- Objective test - Step 3 (R v Gutuama)
Rapes
- 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, and
- Without believing on reasonable grounds that person B consented to the connect
Penetration
Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection.
Proof of Penetration
- The complainant’s evidence
- Medical examination (DNA, Injuries)
- Accused’s admissions
Genitalia
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 indetermined sex. Sec 2 Crimes Act.
Penis
Penis includes a surgically constructed or reconstructed organ analogous to naturally occurring penis (whether the person concerned is male, female, or of indetermined sex. Sec 2 Crimes Act.
Consent
Consent is a person conscious and voluntary agreement to something desired or proposed by another
Matters that do not constitute consent
- Not protesting or offering physical resistance to use of force.
- Application of force to self or others, threat of force to self or others, or fear of force to self or others.
- Asleep or unconscious
- So effected by drugs/alcohol they cannot consent.
- So effected by mental or physical impairment the cannot consent.
- Mistaken ID
- Mistaken as to the nature and quality of the act.
Reasonable Grounds
The establishing of reasonable grounds is a three step process.
Subjective test - Step 1 - Absence of consent
What was the complainant thinking at the time? Was s/he consenting?
Subjective test - Step 2- Belief in consent
If s/he were not consenting did the offender believe the complainant was consenting? ie what was the offender thinking at the time.
Objective test - Step 3 - Reasonable grounds for belief in consent
If the offender believed the complainant was consenting, was that belief reasonable in the circumstances. Ie what would a reasonable person have believed if placed in the same position as the defendant?