Sexual Violation by Rape Flashcards

1
Q

Section and Act

A

Section 128(1)(a), Crimes Act 1961

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2
Q

Imprisonment

A

20 years

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3
Q

Ingredients

A

A Person
Rapes
Another person

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4
Q

Definition of A Person

A

Gender neutral. Proven by Judicial notice or circumstantial evidence.

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5
Q

Definition of Rape

A

Person A rapes Person B if Person A has sexual connection with person B, effected by the penetration of Person B’s genitalia by Persons 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
Sec. 128(2), Crimes Act 1961

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6
Q

Definition of Penetration

A

Introduction and penetration have the same meaning.

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

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7
Q

Proof of penetration

A

Proof may be provided by:
• the complainant’s evidence
• medical examination, (DNA, injuries)
• accused’s admissions.

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8
Q

Genitalia

A

Genitalia 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)
Sec.2, Crimes Act 1961

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9
Q

Case law for Genitalia

A

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

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10
Q

Penis definition

A

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).

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11
Q

Consent definition

A

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

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12
Q

Consent case law

A

Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment.”
R v Cox

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13
Q

Matters that do not constitute consent - Sec. 128A, Crimes Act 1961

A

• 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
(Only include those relevant to the scenario, if any)

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14
Q

What three steps should be taken to establish reasonable grounds

A

Subjective Test - Step 1 - Absence of Consent
What was the complainant thinking at the time? Was s/he consenting?

Subjective Test – Step 2 - Belief in Consent
If s/he were not consenting did the offender believe the complainant was consenting? ie what was the offender thinking at the time.

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. Ie what would a reasonable person have believed if placed in the same position as the defendant?

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15
Q

Case law for reasonable grounds

A

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.”
R v Gutuama

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16
Q

Another person

A

Refer 1.1