Sexual Violation definitions & Case law

Question 1

Define Rape S128(2) CA 1961

Answer 1

Person A rapes Person B, if person A has sexual connection with B, effected by the penetration of person Bs genitalia by person As penis

A) without person Bs consent to the connection.

or

B) without believing on reasonable grounds that person B consents to the connection.

Question 2

Define Penetration

Answer 2

PENETRATION S2 CA 1961
Introduction and penetration have the same meaning.

Introduction to the slightest degree is enough to effect a connection.

PROOF OF PENETRATION IS REQUIRED
Proof may be provided by:
- the complainants evidence 
- medical examination (DNA/injuries)
- accused's admissions

Question 3

Define genitalia

Answer 3

Genitalia or genitals (literally: organs of generation) include the penis and testicals of a male and the vagina and vulva of a female.

GENITALIA S2 CA 1961
Genitalia includes surgically constructed or reconstructed organ analogous to naturally occurring male and female genitalia.

Question 4

Explain R V KOROHEKE (Genitalia)

Answer 4

“Genitalia comprise of the reproductive organs interior and exterior. Includes the vulva and labia both interior and exterior at the opening of the vagina.”

Question 5

Define Penis

Answer 5

PENIS
The male organ of reproduction.

PENIS S2 CA 1961
Includes a surgically constructed and reconstructed organ analogous to naturally occurring penis.

Question 6

Define Consent

Answer 6

A persons conscious and voluntary agreement to something desired or proposed by another.

Question 7

Explain R V COX ( Consent)

Answer 7

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

Question 8

Define non consent under certain circumstances 128A CA1961

Answer 8

A person does not consent to sexual activity under certain circumstances;

Matters that do not constitute consent S128A CA 1961:

• 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.
• so affected by alcohol/drugs they cannot consent.
• so affected by mental or physical impairment they can not consent.
• mistaken I.D
• mistake as to the quality and nature of the act

Question 9

Define The 3 step process of Reasonable Grounds

Answer 9

Subjective test step 1;
What was the complainant thinking at the time? Was she consenting?

Subjective test step 2;
If she wasn’t consenting did the offender believe she was consenting? What was the offender thinking at the time?

Objective test step 3;
If the offender believed the complainant was consenting, was that belief reasonable in the circumstances? Would a reasonable person have believed that if placed in the same position as the defendant?

Question 10

Explain R V GUTUAMA (Objective test)

Under the objective…

Answer 10

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

Question 11

Define U/L Sexual Connection

Answer 11

U/L SEXUAL CONNECTION S128(3) CA1961
Person A has U/L sexual connection with Person B, if Person A has sexual connection with Person B-

a) without Person Bs consent to the connection

Or

b) without believing on reasonable grounds that Person B consents to the connection

Question 12

Define Sexual Connection

Answer 12

SEXUAL CONNECTION S2 CA 1961

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

b) connection between the mouth or tongue of one person and a part of another persons genitalia or anus; or
c) the continuation of connection of a kind described in paragraph (a) or paragraph (b).

Question 13

Define Anus

Answer 13

Prison vagina

Question 14

Define Part of the body

Answer 14

Connection can be completed by any part of the body, usually refers to hands and fingers used to penetrate the victims genitalia or anus.

Question 15

Define Objects

Answer 15

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

Question 16

Define Connection

Answer 16

In the case of oral sexual connection it is not necessary for there to be penetration, any touching of a persons genitalia or anus with another persons mouth or tongue is sufficient.

Question 17

Define mouth or tongue

Answer 17

Not defined has normal meaning.

Question 18

Define Continuation

Answer 18

The definition of sexual connection includes the “continuation” of such acts, capturing situations where sexual activity is started consensually, but later consent is withdrawn.

Question 19

Explain R V KAITAMAKI (Continuation)

If after he has…

Answer 19

If, after he has penetrated a woman, a man realises that she is not consenting (or never has consented) but he continues… That act of intercourse then becomes rape.

Question 20

Define Person

Answer 20

Gender neutral, proven by judicial notice or circumstantial evidence.

Question 21

Define Assault

Answer 21

S2 CA 1961
Assault means the act of intentionally applying or attempting to apply force to the person of another directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds the he has, present ability to effect his purpose; and to assault has a corresponding meaning.

Question 22

Define Intent

Answer 22

A person does something intentionally if they mean to do it; they desire a specific result and act with the aim or purpose of achieving it.

Question 23

Explain R V MOHAN (Intent)

Answer 23

Intent involves a decision to bring about in so far as it lies within the accused’s power, the commission of the offence.

Question 24

Explain R V WAAKA (Intent fleeting)

Answer 24

A ‘fleeting or passing thought is not sufficient’; there must be a firm intent or a firm purpose to effect an act’.

Question 25

Define Young Person

Answer 25

YOUNG PERSON S134(6)(a) CA1961

Child means a person under the age of 16.

Question 26

Explain R V FORREST & FORREST (Young Person)

Answer 26

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.”

Birth certificate and an independent person who can give age of birth date of child, i.e. mother who gave birth to child in question.

Question 27

Define Indecent

Answer 27

An act that is “indecent” has sexual connotations and involves conduct directed at a person that is offensive to public moral values.

Question 28

Explain R V COURT (Indecency)

Indecency means conduct…

Answer 28

Indecency means conduct that right-thinking people will consider an affront of the sexual modesty of the complainant.

Question 29

Explain R V LEESON (Indecent Assault)

The definition of…

Answer 29

The definition of indecent assault is an assault accompanied with circumstances of indecency.