Sexual Violation by unlawful sexual connection

Question 1

Sexual Violation by unlawful sexual connection

Answer 1

Section 128 (1) (b) Crimes Act 1961

Question 2

Penalty

Answer 2

20 years

Question 3

Elements

Answer 3

1. A person
2. Has unlawful sexual connection
3. With another person

Question 4

A person

Answer 4

Gender Neutral. Proven by judicial note or circumstantially.

Question 5

Unlawful Sexual Connection

Answer 5

Person A has unlawful sexual connection with Person B if Person A has sexual connection with Person B -
a) without person B’s consent to the connection
b) without believing on reasonable grounds that person B consents to the connection
Section 128 (3) Crimes Act 1961

Question 6

Sexual Connection

Answer 6

a) connection effect by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes of -
i) a part of the body of another person; or
ii) an object held or manipulated by another person; or

b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus

c) the continuation of connection of a kind described in paragraph a or b
Section 2, Crimes Act 1961

Question 7

Penetration

Answer 7

Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection
Section 2 (1A) Crimes Act 1961

Question 8

Proof of Penetration

Answer 8

Provided by:

• complainants evidence
• medical examination (DNA, injuries)
• accused admissions

Question 9

Genitalia

Answer 9

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).
Section 2, Crimes Act 1961

Question 10

R v Koroheke

Answer 10

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.

Question 11

Objects held or manipulated

Answer 11

Any object that can be held or manipulated by the other person e.g. bottle or vibrator

Question 12

Consent

Answer 12

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

Question 13

R v Cox

Answer 13

Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgement”

Question 14

Matters that do not constitute consent

Answer 14

• 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

Question 15

Reasonable grounds

Answer 15

3 step process

1) Absence of consent (subjective test): What was the complainant thinking at the time? Was s/he consenting?
2) Belief in consent (subjective test): IF s/he were not consenting did the offender believe the complainant was consenting? ie what was the offender thinking at the time?
3) Reasonable grounds for belief in consent (objective test): If the offender believed the 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?

Question 16

R v Gutuama

Answer 16

Under the objective test the Crown must prove that “no reasonable person in the accused shoes could have thought that the complainant was consenting”