Sexual Violation By Rape Flashcards
Sexual Violation by Rape - Act, Section and Ingredients
Section 128(1) Crimes Act 1961 - 20 years
- A person
- Rapes
- Another Person
First ingredient - A person
A person
Gender neutral. Proven by Judicial notice and Circumstantial evidence
Second ingredient - Rapes
Rapes
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 in reasonable grounds that person B consents to the connection
Penetration
Section 2(1A) of Crimes Act 1961
Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection.
Proof of penetration
Proof of penetration is required and can be provided by:
- Complainants evidence
- Medical examination (DNA, injuries)
- Accused’s admissions
Genitalia definition
Section 2 Crimes Act 1961
Genitalia includes surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether person concerned is male, female or of indeterminate sex)
R v Koroheke (what’s it about)
A 15 yr old girl who was abducted and brutally violated by 5 mongrel mob members who barked like dogs and spat on her as they violated her orally and digitally and inserted objects into her over the course of 2 and a half hours.
Their defence was that the girl consented. Although she had not protested and had done as she was told, the girls evidence was that she had only done so because she was frightened.
R v Koroheke (genitalia definition)
The genitalia comprise the reproductive organs, interior and exterior… they include the vulva and the labia, both interior and exterior at the opening of the vagina.
Extended definition of penis
Section 2 of Crimes Act 1961
Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether person concerned is male, female or of indeterminate sex).
R v Cox (consent)
Consent must be full and voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgement.
Consent definition
Consent is a persons conscious and voluntary agreement to something desired or proposed by another.
Matters that do not constitute consent
Section 128A Crimes Act 1961
- not protesting or offering physical resistance to 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 can’t consent
- mistaken ID
- mistaken as to the nature and quality of the act
3 step process to establish reasonable grounds to believe
- Subjective test - absence of consent
What was the complainant thinking at time? Was he/she consenting? - Subjective test - belief in consent
If he/she was consenting did offender believe complainant was consenting, what was offender thinking at time - Objective test - reasonable grounds for belief in consent
If offender believed 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
R v Gutuama (what was it about)
A 27 yr old man charged with raping a 14 yr old girl following a period of consensual sexual activity. He claimed he had reasonable grounds for believing she was still consenting, prompting the court of appeal to clarify the objective test for reasonableness.
R v Gutuama (objective test)
The crown must prove that no reasonable person in the accused’s shoes could have thought that the complainant was consenting
