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?
Sexual Violation by Unlawful sexual connection - Section, Act, Penalty Ingredients and case law.
Section 128(1)(b) Crimes Act 1961 - 20 Yrs Imp
- A person
- Has unlawful sexual connection
- Another person
R v Koroheke - (Genitalia)
R v Cox - (Consent)
R v Gutuama - (Reasonable Grounds)
Unlawful sexual connection
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; and
Without believing on reasonable grounds that person B consents to the connection.
Unlawful Sexual Connection - 11 Points to element
- Unlawful Sexual Connection
- Sexual Connection
- 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)
Sexual Connection
(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).
Section 2, Crimes Act 1961
Attempted Sexual Violation - Section, Act, Penalty Ingredients and case law.
Section 129(1) Crimes Act 1961 - 10 Yrs Imp
- Everyone who
- Attempts
- To commit sexual violation
R v Harpur - (Conduct)
Assault with intent to commit sexual violation - Section, Act, Penalty Ingredients and case law.
Section 129(2) Crimes Act 1961 - 10 Yrs Imp
- Assaults
- Another person
- With intent to commit sexual violation
- Of the other person
R v Harpur - (Conduct)
Attempts (1)
Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
