Sexual Violation Flashcards
What is Section 128B
Section 128B is Sexual Violation
1 Everyone who commits sexual violation is liable to 20 years imprisonment.
2 A person convicted of sexual violation must be sent to prison unless the court thinks that the person should not be sent to prison because of
3 (a)the particular circumstances pf the person convicted and
(b) the particular circumstances of the offence, including the nature of the conduct constituting it.
What is Section 128 and the Subsections
128 is Sexual violation defined,
1 Sexual violation is the act of a person who
A rapes another person
B has unlawful sexual connection with another person.
What is subsection 2 of 128
Definition of Rape:
Person A rapes person B if Person A has sexual connection with person b effected by the penetration to Person B’s genitalia with Person A’s penis
A) without person B’s consent
B) without believing on reasonable grounds that person B consents to the connection.
What is Subsection 3 of 128
Person A has unlawful sexual connection with person B if person A has a sexual connection with person B
A) without person B’s consent
B) without believing on reasonable grounds that person B consents to the connection.
Sexual Connection defined as
Sexual Connection means:
A) connection effected by the introduction into the genitalia or anus of one person, otherwise that for genuine medical purposes. of
i) a part of the body of another person or
ii) an object held or manipulated by another person.
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 of a kind described in a paragraph a) or b)
How do you prove penitration
- The complainants evidence
- Medical examination, including physical injuries and DNA evidence
- the defendant’s admissions
R V Koroheke
The genitalia comprise the reproduction organs, interior and exterior they include the vulva and labia, both interior and exterior, at the opening of the vagina.
Therefore in relation to penetration
if a part of the offenders body or an object held or manipulated by him is between the complainants labia to the slightest degree, it will constitute penetration for the purpose of sexual violation.
Genitalia
Includes a surgically constructed or reconstructed organ analogues to naturally occurring male or female genitalia (whether the person concerned is male, female, or of indeterminate sex)
Definition of a Penis
Includes surgically constructed or reconstructed organ analogous to a naturally occurring penis.
Anus
The anus is not included in within the definition of genitalia therefore can not be raped the most appropriate charge is sexual violation by unlawful sexual connection S128(1)(b)
Section 127
No Presumption because of age:
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
This means that any person of any age is capable of having sexual connection.
What makes sexual connection unlawful
The crown must prove that:
- the complainant did not consent to the sexual act (subjective test) and
- the offender did not believe the complainant was consenting (subjective test) or
- if he did believe she was consenting, the grounds for such a belief were not reasonable (objective test)
Consent
R V Cox:
Consent must be full, voluntary, free and informed … freely given and voluntarily given by a person in a position to form a rational judgement.
R V Cox:
Consent must be full, voluntary, free and informed … freely given and voluntarily given by a person in a position to form a rational judgement.
