Sexual Violation By Unlawful Sexual Connection

Question 1

Section and Act

Answer 1

128(1)(b), Crimes Act 1961

Question 2

Penalty

Answer 2

20 Years Imprisonment

Question 3

Ingredients

Answer 3

1) A Person
2) Has Unlawful Sexual Connection
3) Another Person

Question 4

Definition of “Person” under the act

Answer 4

Gender Neutral. Proven by Judicial notice or circumstantial evidence.

Question 5

Unlawful Sexual Connection

Sec 128(3) Crimes Act 1961

Answer 5

Unlawful Sexual 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.

Question 6

Sexual Connection

Sec 2, Crimes Act 1961

Answer 6

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).

Sec 2 Crimes Act, 1961

Question 7

Definition of “Penetration” under the act

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

Proof may be provided by:

• Complainants evidence
• Medical examinations (DNA, injuries)
• Accused’s admissions

Question 9

Genitalia - Sec 2, Crimes Act 1961

Answer 9

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

Section 2, Crimes Act 1961.

Question 10

Case law:

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.

R v Koroheke

Question 11

Definition of “Consent” under the act

Answer 11

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

Question 12

Case law:

R v Cox

Answer 12

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

R v Cox

Question 13

Matters that do not constitute consent

Sec 128A, Crimes Act 1961

Answer 13

• not protesting or offering physical resistance to use of force
• application of force to self or others, 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 impairment they cannot consent
• mistaken ID
• mistaken as to the nature and quality of the act

Sec 128A, Crimes Act 1961

Question 14

Reasonable Grounds

Answer 14

The establishing of Reasonable Grounds is a three step process.

Question 15

Subjective Test - Step 1 (A)

Answer 15

Absence of Consent

What was the complainant thinking at the time? Was she consenting?

Question 16

Subjective Test - Step 2 (B)

Answer 16

Belief in Consent

If she wasn’t consenting, did the offender believe she was consenting. i.e. what was the offender thinking at the time.

Question 17

Objective Test - Step 3 (R)

Answer 17

Reasonable grounds for belief in consent

If the offender believed the complainant was consenting, was that belief reasonable in the circumstances. i.e. what would a reasonable person have believed if placed in the same position.

Question 18

Case law:

R v Gutuama

Answer 18

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.