Sexual Violation By Rape Flashcards
What is the section and elements for Sexual Violation By Rape?
Section 128 (1)(a) CA 1961
A person
Rapes
Another person
What matters do not constitute consent?
Section 128A CA 1961
Not protesting or offering physical resistance
Threats of force or force to self or others
Asleep or unconscious
So affected by drugs/alcohol they cannot consent
So affected by mental/physical impairment
Mistaken ID
Mistaken as to nature and quality of the act
What is the penalty for sexual violation 128B?
20 years imprisonment
A person convicted of sexual violation must be sentenced to imprisonment unless the court thinks otherwise due to:
Particular circumstances of person convicted
Particular circumstances of the offence, including the nature of the conduct constituting it
(Ensure specify when charging)
What’s the definition of rape?
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 that connection
What is the definition of a person?
Generally accepted by judicial notice or proven by circumstantial evidence
What is the definition of genitalia?
The genitalia or genitals (literally organs of generation) include the penis and testicles of a male and the vulva and vagina of a female.
Also include surgically constructed or reconstructed organs analogous with naturally occurring genitalia or genitals (whether in a male, female or person if undetermined sex).
What is the definition of consent?
Consent is a persons conscious and voluntary agreement to something desired or proposed by another.
What is the definition of penetration? (Introduction)
Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection.
Section 2 (1A) CA 1961
What is the definition of penis?
Includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is a male, female or of indeterminate sex)
R v Cox
Consent
Consent must be full voluntary free and informed. Freely and voluntarily given by a person in a position to form a rational judgement.
R v Koroheke
Genitalia
The genitalia comprise of the reproductive organs, interior and exterior. They include the vulva and the labia, both interior and exterior at the opening of the vagina.
R v Gutuama
Consent
Under the objective test the crown must prove that ‘no reasonable person. In the accused shoes could have thought that the complainant was consenting’
What is the 3 step reasonable test in regards to consent?
Subjective: what was the complainant thinking at the time, was she consenting
Subjective: if she wasn’t consenting did he believ she was consenting? What did the offender believe at the time?
Objective: what would a reasonable person have believed if placed in the same position as the defendant?
Proving intent
The offenders actions and words before, during and after the event
The surrounding circumstances
The nature of the act itself
For liability element discussion consider:
Define / caselaw / defence / relate to scenario
