Sexual Violation by Rape Flashcards
Section and Penalty
S128(1)(a) CA61
20 Years Imp
Ingredients
1) A person
2) Rapes
3) Another Person
Person
Gender Neutral. Proven by Judicial notice or circumstantial evidence.
Rape
S128(2) CA61
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.
Introduction/Penetration
S2(1A) CA61
Introduction and penetration have the same meaning. Introduction to the slightest degree is enough to effect a connection.
Proof of penetration is required
Proof may be provided by:
- Complainants evidence
- Medical examinations (DNA, injuries)
- Accused’s admissions
Genitalia
S2 CA61
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).
R v Koroheke
Genitalia
R v Koroheke
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.
Penis
S2 CA61
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).
Consent
Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.
R v Cox
Consent must be full, voluntary, free and informed… freely and voluntarily given by a person in a position to form a rational judgement.
Allowing Sexual Activity does not amount to Consent in some Circumstances
Matters that do not Constitute Consent
S128A CA61
A person does not consent to sexual activity:
(1) Just because he or she does not protest or offer physical resistance to the activity
(2) If he or she allows the activity because of
- Force applied to him or her or some other person
- The threat (express or implied) of the application of force to him or her or some other person
- The fear of the application of force to him or her or some other person
(3) If the activity occurs while he or she is asleep or unconscious.
(4) If the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
(5) If the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
(6) With another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.
(7) If he or she allows the act because he or she is mistaken about its nature and quality.
Reasonable Grounds Three Step Process
Subjective Test - Step 1
Absence of Consent
What was the complainant thinking at the time? Was she consenting?
Reasonable Grounds Three Step Process
Subjective Test - Step 2
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.
Reasonable Grounds Three Step Process
Objective Test - Step 3
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.
