Sexual Violation By Rape

Question 1

Sexual Violation By Rape

Answer 1

Section 128 (1) (a) Crimes Act 1961

Question 2

Penalty

Answer 2

20 years

Question 3

Elements

Answer 3

1. A person
2. Rapes
3. Another person

Question 4

Person

Answer 4

Gender Neutral. Proven by judicial note or circumstantially.

Question 5

Rape

Answer 5

Person A rapes Person B if Person A has sexual connection with person B, effected by the penetration of person Bs genitalia by person As penis -

a) without person Bs consent to the connection
b) without believing on reasonable grounds that person B consent to the connection

Section 128 (2) Crimes Act 1961

Question 6

Penetration

Answer 6

Introduction and penetration have the same meaning.

Introduction to the slightest degree is enough to effect a connection
Section 2 (1A) Crimes Act 1961

Question 7

Proof of Penetration

Answer 7

Provided by: complainants evidence, medical exam (DNA or injuries), accused admissions.

Question 8

Genitalia

Answer 8

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)
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.

Question 10

Penis

Answer 10

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

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

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

Question 14

Reasonable Grounds

Answer 14

3 step process

1) Absence of consent (subjective test): What was the complainant thinking at the time? Was s/he consenting?2) Belief in consent (subjective test): IF s/he were not consenting did the offender believe the complainant was consenting? ie what was the offender thinking at the time?
3) Reasonable grounds for belief in consent (objective test): If the offender believed the complainant was consenting, was the belief reasonable in the circumstances. ie. what would a reasonable person have believed if placed in the same position as the defendant?

Question 15

R v Gutuama

Answer 15

Under the objective test the Crown must prove that “no reasonable person in the accused shoes could have thought that the complainant was consenting”