Sexual Violation

Question 1

What must be proved in cases of sexual violation?

Answer 1

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

Therefore any investigation must prove that either:

• the defendant knew they did not have the victim’s consent but acted anyway (the offender’s mens rea), or
• the defendant’s grounds for believing that the victim consented to the act were unreasonable.

Question 2

Sexual Violation Legislation

Answer 2

Section 128, Crimes Act 1961 - 20 years

(1) Sexual violation is the act of a person who—

(a) rapes another person; or
(b) has unlawful sexual connection with another person.

(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.

(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.

Question 3

Sexual connection defined - Section 2, Crimes Act 1961

Answer 3

Sexual connection means—

(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)

Question 4

Introduction into / penetration difference?

Answer 4

In practice there is no difference, and it is not necessary to differentiate between the two terms. Introduction to the slightest degree is enough to effect a connection.

Question 5

Proof of penetration may be established by:

Answer 5

1. the complainant’s evidence
2. medical examination, including physical injuries and DNA evidence
3. the defendant’s admissions.

Question 6

Genetalia - Section 2, Crimes Act 1961

Answer 6

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)

Of note: In the case of sexual violation by rape, complainants will almost invariably be female, and the relevant organs are therefore the vulva and vagina.

Question 7

R v Koroheke

Answer 7

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 - Section 2, Crimes Act 1961

Answer 8

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

Objects held / manipulated

Answer 9

This applies to anything, other than a part of his body, used by the offender to penetrate the complainant’s genitalia or anus - for example, a vibrator, a deodorant bottle or other hand-held objects.

Question 10

Name two Genuine medical purposes for pentration of gentalia or anus

Answer 10

Cervical screening and prostate examination

Question 11

Degree of penetration required for oral sexual connection?

Answer 11

In the case of oral sexual connection it is not necessary for there to be penetration; any touching of a person’s genitalia or anus with another person’s mouth or tongue is sufficient.

Question 12

Continuation meaning

Answer 12

Situations where sexual activity is started consensually, but consent is later withdrawn.

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

Question 13

No presumption because of age - Section 127, Crimes Act 1961

Answer 13

There is no presumption of law that a person is incapable of sexual connection because of his or her age.

This provision means that any person of any age is capable, in a legal sense, of being involved in sexual connection.

Question 14

Person A and Person B

Answer 14

Person A is the offender and Person B is the complainant

Person A “person” is generally accepted by judicial notice or proved by circumstantial evidence.

Person is gender netural. Age is irrelevant for person B