Sexual Violation by Rape - s128(1)(a) Flashcards
Sexual Violation by Rape
- s128(1)(a) CA 1961
- 20yrs
- A person
- Rapes
- Another person
A person
Gender neutral. Proven by judicial notice or circumstantial evidence.
Sexual Violation
- s128(1) CA61
Is the act of a person who rapes or has unlawful sexual connection with another.
Rape
- s128(2) CA61
Penetration of a person’s genitalia by another person’s penis (Incl surgically constructed)
(a) without consent, &
(b) without believing on RG the person consented.
Penetration
- s2 CA61
Introduction to the slightest degree is enough to effect a connection.
Proof by:
• Complainants evidence
• Accused’s admissions
• Medical exam (DNA, injuries.)
KOROHEKE (Genitalia)
Genitalia comprise the reproduction organs, interior and exterior… they include the vulva and labia, both interior and exterior, at the opening of the vagina.
Consent
Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.
COX (Consent)
Consent must be full, voluntary, free and informed… freely and voluntarily given by a person in a position to form a rational judgement.
KOROHEKE (Consent)
Consent freely given, rather than submission to something unwanted or avoidable.
GUTUAMA (Consent)
Under the objective test, the Crown must prove that, “No reasonable person in the accused’ shoes could have thought that the complainant was consenting.”
Crown must prove
- Victim didn’t consent
- Offender didn’t believe they consented
- If he believes she consented, grounds for belief were unreasonable.
Consent Invalid
- s128A CA 1961
- Asleep or unconscious
- So affected by alcohol or drugs
- So affected by mental or physical impairment
- Mistaken identity
- Mistaken as to the nature and quality of the act
- Application, threats or fear of force
- Not resisting or protesting.
