Sexual Violation

Question 1

What must be proved Sexual Violation

Answer 1

In all cases of sexual violation the Crown must prove beyond reasonable doubt that:
• there was an intentional act by the offender involving sexual connection with the complainant, and
• the complainant did not consent to the sexual act, and
• the offender did not believe the complainant was consenting, or
• if the offender did believe the complainant was consenting, the grounds for such a belief were not reasonable

Question 2

Rape Definition

Answer 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,—

(a) without person B’s consent to the connection; and
(b) without believing on reasonable grounds that person B consents to the connection.

Question 3

Unlawful Sexual Connection definition

Answer 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; and
(b) without believing on reasonable grounds that person B consents to the connection.

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

Question 4

What does slightest degree of Penetration mean?

Answer 4

So, while under paragraph (a) penetration of the genitalia or anus must be proved, the extent of penetration is not relevant; any degree of penetration, no matter how slight or fleeting, is sufficient.

The Court in R v N 1 held that the offence “is sufficiently proved by penetration of the vulva by the penis … proof of penetration of the vagina is not required.”

Question 5

How do you prove Penetration?

Answer 5

Proof of penetration may be established by:
• the complainant’s evidence
• medical examination, including physical injuries and DNA evidence
• the defendant’s admissions.

Question 6

Genitalia Definition

Answer 6

The genitalia or genitals (literally: organs of generation) include the penis and testicles of a male, and the vulva and vagina of a female.

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 indeterminate sex)

Question 7

Genitalia Case Law

Answer 7

R v Koroheke 28/11/01, CA189/01
The genitalia comprise the reproduction organs, interior and exterior … they include the vulva [and] the labia, both interior and exterior, at the opening of the vagina.

Question 8

Penis Definition

Answer 8

The penis forms part of the male genitalia

Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female, or of indeterminate sex)

Question 9

Continuation Definition

Answer 9

There is an obligation on a person to stop sexual activity at the point he realises the other person is, or may be, no longer willing - failure to do so may render a previously consensual act unlawful.

Question 10

What must crown prove in regards to consent

Answer 10

• the complainant did not consent to the sexual act (a subjective test), and
• the offender did not believe the complainant was consenting (a subjective test), or
• if he did believe she was consenting, the grounds for such a belief were not reasonable (an objective test).

Question 11

Consent Case Law

Answer 11

R v Cox 7/11/96, CA213/96
Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment”.

Question 12

Belief in Consent Case Law

Answer 12

R v Gutuama 13/12/01, CA275/01
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”.

Question 13

Matters not constituting consent S128A

Answer 13

(1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.
(2) A person does not consent to sexual activity if he or she allows the activity because of—
(a) force applied to him or her or some other person; or
(b) the threat (express or implied) of the application of force to him or her or some other person; or
(c) the fear of the application of force to him or her or some other person.
(3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious. (Prior Approval does not constitute consent)
(4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
(5) A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
(6) One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.
(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.

Question 14

Threat of Force Case Law

Answer 14

R v Koroheke 28/11/01 CA189/01
It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.

Question 15

Affected by Alcohol Drugs consent

Answer 15

The influence of alcohol and drugs may have an impact on a person’s ability to give valid consent, however consent is not invalid simply because the person is intoxicated. The question is whether they were affected to such an extent that they were incapable of understanding the situation and giving rational or reasoned consent

Question 16

Alternative charge for vunerable people (Intellectual, mental or physical impairment)

Answer 16

Where the threshold for sexual violation has not been met, but the defendant has taken advantage of the complainant’s vulnerability, a charge should be considered under s138 of the Crimes Act 1961 – sexual exploitation of a person with significant impairment.

Question 17

Sexual Violation by Rape Liability

Answer 17

Sexual Violation by Rape
Section 128(1)(a), Crimes Act 1961
(1) a person 
(2) rapes 
(3) another person

Question 18

Sexual violation by unlawful sexual connection Liability

Answer 18

Sexual violation by unlawful sexual connection
Section 128(1)(b), Crimes Act 1961
(1)  a person 
(2) has unlawful sexual connection with 
(3) another person

Question 19

Examples of Sexual Connection

Answer 19

• penetration of a person’s genitalia or anus by a part of another person’s body (such as a finger in the vagina, or a penis in the anus)
• penetration of a person’s genitalia or anus by an object held or manipulated by another person (i.e. a vibrator, deodorant bottle or other hand-held objects)
• touching of a person’s genitalia or anus by another person’s mouth or tongue (i.e. oral sex).

Question 20

Penalty for Sexual Violation by Rape and Unlawful Sexual Connection

Answer 20

20 years

Question 21

Matters not constituting consent

Section 128A

Answer 21

• Lack of resistance
• Force, threat or fear of force (R v Koroheke)
• Asleep or unconscious
• Affected by alcohol or drugs
• Intellectual, Mental or physical impairment
• Mistake as to identity
• mistake as to nature and quality of act