Sexual Violations Flashcards
What must be proved?
- There was an intentional act by the offender involving a sexual connection with the complainant.
- The complainant did not consent to the sexual act, and
- The offender did not believe the complainant was consenting, or
- If he did believe she was consenting , the grounds for such a belief were not reasonable.
Sexual Violation by Rape - Section, Act, Penalty Ingredients and case law.
Section 128(1)(a) Crimes Act 1961 - 20 Yrs Imp
- A person
- Rapes
- Another person
R v Koroheke - (Genitalia)
R v Cox - (Consent)
R v Gutuama - (Reasonable Grounds)
Rapes
- Person A rapes person B, if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis
- Without person B’s consent to the connection, and
- Without believing on reasonable grounds that person B consented to the connect
Penetration
Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection.
Proof of Penetration
- The complainant’s evidence
- Medical examination (DNA, Injuries)
- Accused’s admissions
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.
Penis
Penis includes a surgically constructed or reconstructed organ analogous to naturally occurring penis (whether the person concerned is male, female, or of indeterminate sex. Sec 2 Crimes Act.
Matters that do not constitute consent
- Not protesting or offering physical resistance to use of force.
- Application of force to self or others, threat of force to self or others, or fear of force to self or others.
- Asleep or unconscious
- So effected by drugs/alcohol they cannot consent.
- So effected by mental or physical impairment the cannot consent.
- Mistaken ID
- Mistaken as to the nature and quality of the act.
Reasonable Grounds (The establishing of reasonable grounds is a three step process.)
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
What was the complainant thinking at the time? Was s/he consenting?
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?
Unlawful sexual connection
Person A has unlawful sexual connection with person B if person A has sexual connection with person B—
Without person B’s consent to the connection; and
Without believing on reasonable grounds that person B consents to the connection.
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).
Section 2, Crimes Act 1961
R v Harpur (1)- Conduct viewed
The Court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops … the defendant’s conduct [may] be considered in its entirety. Considering how much remains to be done … is always relevant, though not determinative.
R v Koroheke (1)- Genitalia
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 Cox (1)- Consent
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 Gutuama - Objective test
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”.
