Sexual Violation by Rape Flashcards
Section and Act
Section 128(1)(a), Crimes Act 1961
Imprisonment
20 years
Ingredients
A Person
Rapes
Another person
Definition of A Person
Gender neutral. Proven by Judicial notice or circumstantial evidence.
Definition of Rape
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
Definition of Penetration
Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection.
Sec. 2(1A), Crimes Act 1961
Proof of penetration
Proof may be provided by:
• the complainant’s evidence
• medical examination, (DNA, injuries)
• accused’s admissions.
Genitalia
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
Case law for Genitalia
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
Penis definition
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 definition
“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.
Consent case law
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
Matters that do not constitute consent - Sec. 128A, Crimes Act 1961
• 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)
What three steps should be taken to establish reasonable grounds
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?
Case law for reasonable grounds
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