Sexual Violation By Unlawful Sexual Connection

Question 1

Sexual violation by unlawful sexual connection - ingredients

Answer 1

Section 128(1)(b) - 20 years

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

Question 2

A person

Answer 2

Gender neutral. Proven by Judicial notice or circumstantial evidence

Question 3

Unlawful Sexual Connection - Section and definition

Answer 3

Section 128(3) of Crimes Act 1961

Person A has unlawful sexual connection with person B if person A has sexual connection with person B

a) without person B’s consent AND
b) without believing on reasonable grounds that person B consents to the connection

Question 4

Sexual connection - Section 2 definition

Answer 4

a) connection effected by introduction into the genitalia or anus of a person
- body part
- object held or manipulated
OR
b) connection between mouth or tongue of a person and a part of another persons genitalia or anus
c) continuation of either of the above connection

Question 5

Penetration - Section 2(1A) definition

Answer 5

Introduction and penetration have the same meaning

introduction to the slightest degree is enough to effect a connection

Question 6

Proof of Penetration

Answer 6

Proof of penetration is required and may be provided by

• complainants evidence
• medical examination (DNA or injuries)
• admissions made by accused

Question 7

Genitalia - Section 2 definition

Answer 7

Genitalia includes a surgically constructed or reconstructed organ analogous to a naturally occurring male or female genitalia (whether person concerned is male, female or of indeterminate sex)

Question 8

R v Koroheke on genitalia definition

Answer 8

The genitalia comprise the reproduction organs, interior and exterior. They include the vulva and the labia, interior and exterior, at the opening of the vagina

Question 9

What is Consent

Answer 9

Consent is a persons conscious and voluntary agreement to something desired or proposed by another

Question 10

R v Cox on consent

Answer 10

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

Question 11

Matters that do not constitute consent

Answer 11

• not protesting or offering physical resistance
• 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 the nature and quality of the act

Question 12

Reasonable Grounds - 3 step process

Answer 12

1. step 1 - absence of consent
   what was complainant thinking, was s/he consenting?
2. 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
3. step 3 - reasonable grounds for belief in consent
   if offender believed complainant was consenting was that belief reasonable in the circumstances ie. what would a reasonable person have believed if in the same position as the offender

Question 13

R v Gutuama - reasonable grounds to believe

Answer 13

The Crown must prove that no reasonable person in the offenders shoes would have thought that the complainant was consenting