Sexual Violation definitions & Case law Flashcards
Complete definitions and case law
Define Rape S128(2) CA 1961
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.
Define Penetration
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
Define genitalia
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.
Explain R V KOROHEKE (Genitalia)
“Genitalia comprise of the reproductive organs interior and exterior. Includes the vulva and labia both interior and exterior at the opening of the vagina.”
Define Penis
PENIS
The male organ of reproduction.
PENIS S2 CA 1961
Includes a surgically constructed and reconstructed organ analogous to naturally occurring penis.
Define Consent
A persons conscious and voluntary agreement to something desired or proposed by another.
Explain R V COX ( Consent)
Consent must be full, voluntary and informed… Freely and voluntarily given by a person in a position to form a rationale judgement.
Define non consent under certain circumstances 128A CA1961
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
Define The 3 step process of Reasonable Grounds
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?
Explain R V GUTUAMA (Objective test)
Under the objective…
Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought the complainant was consenting.”
Define U/L Sexual Connection
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
Define Sexual Connection
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).
Define Anus
Prison vagina
Define Part of the body
Connection can be completed by any part of the body, usually refers to hands and fingers used to penetrate the victims genitalia or anus.
Define Objects
Any object that can be held or manipulated by the other person ( e.g a bottle or vibrator).
Define Connection
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.
Define mouth or tongue
Not defined has normal meaning.
Define Continuation
The definition of sexual connection includes the “continuation” of such acts, capturing situations where sexual activity is started consensually, but later consent is withdrawn.
Explain R V KAITAMAKI (Continuation)
If after he has…
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.
Define Person
Gender neutral, proven by judicial notice or circumstantial evidence.
Define Assault
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.
Define Intent
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.
Explain R V MOHAN (Intent)
Intent involves a decision to bring about in so far as it lies within the accused’s power, the commission of the offence.
Explain R V WAAKA (Intent fleeting)
A ‘fleeting or passing thought is not sufficient’; there must be a firm intent or a firm purpose to effect an act’.
Define Young Person
YOUNG PERSON S134(6)(a) CA1961
Child means a person under the age of 16.
Explain R V FORREST & FORREST (Young Person)
“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.
Define Indecent
An act that is “indecent” has sexual connotations and involves conduct directed at a person that is offensive to public moral values.
Explain R V COURT (Indecency)
Indecency means conduct…
Indecency means conduct that right-thinking people will consider an affront of the sexual modesty of the complainant.
Explain R V LEESON (Indecent Assault)
The definition of…
The definition of indecent assault is an assault accompanied with circumstances of indecency.
