Sexual Violation By Rape

Question 1

Section

Answer 1

128(1)(a) Crimes Act 1961

Question 2

Penalty

Answer 2

20 years

Question 3

Ingredients

Answer 3

1) A person
2) Rapes
3) Another Person

Question 4

Person

Answer 4

Gender Neutral. Proven by Judicial notice or circumstantial evidence.

Question 5

Rape

Answer 5

Section 128 (2), Crimes Act 1961

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 6

Penetration

Answer 6

Section 2(1A) Crimes Act 1961.

Introduction and penetration have the same meaning.

Introduction to the slightest degree is enough to effect a connection.

Question 7

Proof of penetration is required

Answer 7

Proof may be provided by:

• Complainants evidence
• Medical examinations (DNA, injuries)
• Accused’s admissions

Question 8

Genitalia

Section 2, Crimes Act 1961.

Answer 8

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

Section 2, Crimes Act 1961.

Question 9

R v Koroheke

Answer 9

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.

R v Koroheke

Question 10

Penis

Section 2, Crimes Act 1961.

Answer 10

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).

Section 2, Crimes Act 1961.

Question 11

Consent

Answer 11

Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.

Question 12

R v Cox

Answer 12

Consent must be full, voluntary, free and informed… freely and voluntarily given by a person in a position to form a rational judgement.

Question 13

Matters that do not constitute consent

Answer 13

Sec 128A, Crimes Act 1961

• not protesting or offering physical resistance to use of force
• application, threats or fear of force to self or others
• asleep or unconscious
• so affected by drugs/alcohol they cannot consent
• so affected by mental impairment they cannot consent
• mistaken ID
• mistaken as to the nature and quality of the act

Sec 128A, Crimes Act 1961

Question 14

Reasonable Grounds

Answer 14

The establishing of Reasonable Grounds is a three step process.

Question 15

Subjective Test - Step 1

Answer 15

Absence of Consent

What was the complainant thinking at the time? Was she consenting?

Question 16

Subjective Test - Step 2

Answer 16

Belief in Consent

If she wasn’t consenting, did the offender believe she was consenting. i.e. what was the offender thinking at the time.

Question 17

Objective Test - Step 3

Answer 17

Reasonable grounds for belief in consent

If the offender believed the complainant was consenting, was that belief reasonable in the circumstances. i.e. what would a reasonable person have believed if placed in the same position.

Question 18

R v Gutuama

Answer 18

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.