Sexual Violation by Rape Flashcards
What is the Section, Subsection and Act of Sexual Violation by Rape?
Section 128(1)(a), Crimes Act 1961
What is Sexual Violation Defined?
Sexual Violation is the act of a person who rapes another person, or has unlawful sexual connection with another person
What are the elements of Sexual Violation by Rape?
A person rapes another person
What is the definition of a person?
Accepted by judicial notice or proved by circumstantial evidence.
What must a person have to rape?
A penis.
Under Section 128 of the Crimes Act 1961, what is rape defined?
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.
Under Section 2(1A) of the Crimes Act 1961, what is penetration defined?
Introduction to the slightest degree is enough to effect a connection.
How may proof of penetration be established?
The penetration triangle.
The complainant’s evidence, medical examination and offenders’ admissions.
Under Section 2 of the Crimes Act 1961, what is Unlawful Sexual Connection defined?
(a) Connection effected by the introduction into the genitalia or anus of one person, otherwise for genuine medical purposes, of
(i) the 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 another person’s genitalia or anus, or
(c) The continuation of connection of a kind described in paragraph’s (a) and (b).
What is an example of case law regarding the definition of genitalia?
R v Koroheke
The genitalia comprise the reproduction organs, interior and exterior.
The involve the vulva (and) labia, both the interior and exterior, at the opening of the vagina.
What is consent defined?
Consent is a persons conscious and voluntary agreement to something desired and proposed by another.
What three things must the Crown prove regarding Consent?
The complainant did not consent to the sexual act (subjective text), and
The offender did not believe the complainant was consenting (subjective text) , and
If he did believe she was consenting, the grounds for such a belief were not reasonable (objective text).
Name three examples of case law relevant to consent?
R v Cox, R v Cook and R v Gutuama.
Explain R v Cox?
Consent must be full, voluntary, free and informed, freely and voluntary given by a person in a position to form a rational judgement.
Explain R v Gutuama?
Under the objective test, the crown must prove that “no reasonable person in the accused’s shoes could have thought (the complainant) was consenting.
Subjective test - thoughts of complaintant at the time of the act
What Act, Section and Act describes matters that do not constitute consent in themselves?
Section 128A of the Crimes Act 1961
Name seven examples of matters that do not constitute consent in themselves, that may be used as defen as per section 128A CA1961
No protest or physical resistance to the activity.
Allowing the activity because of force applied, the implied or expressed of the application of force or the fear of the application of force.
Person is asleep or unconscious.
So effected by alcohol or other drug that they cannot consent to the activity.
Effected by a mental, intellectual or physical condition that they cannot consent to the activity.
Mistaken to who the other person is.
Mistaken to the nature and quality of the activity.
What is continuation
When sexual activity is commenced consensually, but consent is later withdrawn.
What is the subjective and objective test in relation to R v Gutuama
Subjective test - in absence of consent, what was the complainant thinking at the time
Objective test:
Would a reasonable person have believed if placed in the same position as the defendant
What must you always explain when using R v Gutuama to prove consent
Subjective test (complainant) and Objective test (defendant)
What does R v Koroheke state regarding consent
submission by a woman to what she may regard as unwanted but unavoidable. e.g submission because she is frightened of what might happen if she doesn’t consent
What is genitalia
organs of generation, penis and testicles of male and the vagina and vulva of a female
What is R v Cook
real, genuine or true consent may be conveyed by words or conduct or both
What must you prove regarding penetration
the penetration triangle
complainants’ evidence
medical examination - forensic results and related injuries
defendants admissions
