Sexual violation by Unlawful sexual connection Flashcards
Act and section
Section 128 (1)(b), crimes act 1961
Imprisonment
20 years
Ingredients
A Person
Has Unlawful Sexual Connection
With another person
Definition of A person
Gender neutral. Proven by Judicial notice or circumstantial evidence.
Definition of Unlawful section connection
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, and
(b) without believing on reasonable grounds that person B consents to the connection
Definition of Sexual Connection
Sec 2, Crimes Act 1961 Sexual Connection:
(a) connection effected 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; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)
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.
Definition of 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 (Only include if it relates to the scenario)
Genitalia Case Law
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 (Only include if it relates to the scenario)
Objects held or manipulated definition
Any object that can be held or manipulated by the other person - e.g. Bottle or vibrator.
Definition of consent
Consent:
“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
• 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 step process must be taken in order 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?
