1. Sexual Violation

Question 1

What is sexual violation?

Answer 1

it is non-consensual sexual connection with another person.

Question 2

What is the difference between rape and unlawful sexual connection?

Answer 2

Rape – is a specific form of sexual violation that involves the non-consensual penetration of the complainant’s genitalia by the offender’s penis.

Unlawful sexual connection – has a wider meaning and includes any form of non-consensual penetration or oral connection with a person’s genitalia or anus.

Question 3

What must be proved for sexual violation?

Answer 3

the Crown must prove beyond reasonable doubt that:
•There was an intentional act by the offender involving sexual connection with the complainant, and
•The complainant did not consent to the sexual act, and
•The offender did not believe the complainant was consenting, or
•If the offender did believe the complainant was consenting, the grounds for such a belief were not reasonable.

Question 4

What is the legislation for s128 - sexual violation?

Answer 4

1. Sexual violation is the act of a person who –
   a. Rapes another person; or
   b. Has unlawful sexual connection with another person.
2. Person A rapes person B is person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis, -
   a. Without person B’s consent to the connection; and
   b. Without believing on reasonable grounds that person B consents to the connection.
3. 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 in reasonable grounds that person B consents to the connection.

Question 5

What are the elements of rape? What section?

Answer 5

s128(1)(a)
- a person
- rapes
-another person
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 consents to the connection

Question 6

What are the element of unlawful sexual connection? What section?

Answer 6

s128(1)(b)
- a person
- has unlawful sexual connection
- with another person
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

Question 7

what does s128B say about sentencing?

Answer 7

a person convicted of sexual violation must be sentenced to imprisonment unless the court thinks that person shouldn’t be sentenced to imprisonment - based on the particular circumstances of the person and the offence.

Question 8

How is sexual connection defined? What section?

Answer 8

S2, CA61

1. Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of –
   a. A part of the body of another person; or
   b. An object held or manipulated by another person; or
2. Connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or
3. The continuation of connection of a kind described in paragraph (a) or (b).

Question 9

How can penetration be proved?

Answer 9

• The complainant’s evidence
• Medical examination, including physical injuries and DNA
• Defendants admissions

Question 10

What definition does case law give about genitalia?

Answer 10

the genitalia comprises 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

What is the definition of a penis?

Answer 11

includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis.

Question 12

what does the law say regarding age for sex? What section?

Answer 12

s127

There is no presumption of law that a person is incapable of sexual connection because of his or her age.

Question 13

What must be proved for establishing reasonable grounds of consent?

Answer 13

• Absence of consent - The complainant did not consent to the sexual act (subjective test)
• Belief in consent - The offender did not believe the complaint was consenting (subjective test)
• Reasonable grounds for belief in consent - If he did believe she was consenting, the grounds for such a belief were not reasonable (objective test)

Question 14

What is the case law around consent?

Answer 14

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 15

what is the case law around the objective test?

Answer 15

Under the objective test the Crown must prove that no reasonable person in the accused’s shows could have thought that the complainant was consenting.
(R v Gutuama)

Question 16

What are the 7 things that do not amount to consent? s128A

Answer 16

• lack of protest or resistance
• force, threat, or fear of force
• asleep or unconscious
• affected by alcohol or drugs
• intellectual, mental or physical impairment
• mistake as to identity
• mistake as to nature and quality of the act

Question 17

what is the case law regarding consent based on force, threat, or fear of force?

Answer 17

It is important to distinguish between consent that is freely given and submission by a woman as to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.
(R v Koroheke)

Question 18

What are the differences in definitions of attempted sexual violation and assault with intent to commit sexual violation?

Answer 18

• Attempted sexual violation – this does not necessarily involve an assault.
• Assault with intent to commit sexual violation – may not be sufficiently proximate to the full offence to constitute an attempt.

Question 19

What is the legislation for s129 - attempted sexual violation and assault with intent to commit sexual violation?

Answer 19

1. Every one who attempts to commit sexual violation is liable to imprisonment for a term not exceeding 10 years.
2. Every one who assaults another person with intent to commit sexual violation of the other person is liable to imprisonment for a term not exceeding 10 years.

Question 20

what does s72(3) say about what constitutes an attempt?

Answer 20

An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

Question 21

what does s72(2) say about the question of law?

Answer 21

2. The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

Question 22

From what circumstantial evidence can intent be inferred?

Answer 22

offenders actions and words before, during and after the event, the surrounding circumstances, the nature of the act itself.

Question 23

What must the Crown prove regarding attempted sexual violation?

Answer 23

• Intended to have sexual connection with the complainant, and
• The complainant did not consent to the intended sexual connection; and
• The defendant did not believe on reasonable ground that the complainant was consenting

Question 24

What is the case law held about attempts?

Answer 24

An attempt includes an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
(R v Harpur)

Question 25

What is the case law about sufficiently proximate?

Answer 25

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 in its entirety. Considering how much remains to be done…is always relevant, though not determinative.
(R v Harpur)

Question 26

what are two likely intents from assaulting someone with intent to commit sexual violation?

Answer 26

• In the hope that the complainant will then change their mind and consent to the act (liable for assault or indecent assault)
• Intending to commit rape or sexual connection regardless of whether the complainant changes their mind (liable for attempted sexual violation or assault with intent to commit sexual violation).

Question 27

What is consent?

Answer 27

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

Question 28

What is the definition of genitalia?

Answer 28

genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia.

Question 29

What are the elements of s129(2)?

Answer 29

• Everyone
• Assaults another person
• With intent to commit sexual violation
• Of the other person

Question 30

What is the definition of assault?

Answer 30

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 ground that he has, present ability to effect his purpose.