FOCUS Sexual Offence Liabilities Flashcards
Sexual Violation by Rape
List:
- Tops & Sides
- Case Law
- Definition Headings
Section 128(1)(a)
Crimes Act 1961
Penalty: 20 years
A Person / Rapes / Another Person
R v Cox
R v Koroheke
R v Gutuama
Person Rape Penetration Proof of Penetration Required Genitalia Penis Consent Matters that do not constitute consent Reasonable Grounds
Sexual Violation by Unlawful Sexual Connection
List:
- Tops & Sides
- Case Law
- Definition Headings
Section 128(1)(b)
Crimes Act 1961
Penalty: 20 years
A Person / Has Unlawful Sexual Connection / With Another Person
R v Cox
R v Koroheke
R v Gutuama
Person Unlawful Sexual Connection Sexual Connection Penetration Proof of Penetration Required Genitalia Consent Matters that do not constitute consent Reasonable Grounds
Define Rape
Person A rapes Person B if Person A has Sexual Connection with Person B, effected by the penetration of Person B’s generalise 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
Define Penetration
Introduction and Penetration have the same meaning
Introduction to the slightest degree is enough to effect a connection
Define Proof of Penetration is Required
Proof of Penetration is required and may be proved by:
The complainants evidence
Medical Examination
Accused’s Admissions
Define Genitalia
Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male of female genitalia (whether the person is male, female or of indeterminate sex)
R v Koroheke
The genitalia comprises the reproductive organs, interior and exterior… they include the vulva and labia, bother interior and exterior, at the opening of the vagina
Define Penis
Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring Penis
Define Consent
Consent is a persons conscious and voluntary agreement to something desired or proposed by another.
R v Cox
Consent must be full, voluntary, free and informed. Freely and voluntarily given by a person in a position to form a rational judgement.
Matters that do not constitute consent
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
Sleep or unconscious
So affected by drugs and or alcohol they cannot consent
So affected by mental or physical impairment they cannot consent
Mistaken identity
Mistaken as to the nature and quality of the act
Reasonable grounds
The establishing of reasonable grounds is a three step process
Step one-absence of consent-subjective test
What was the complainant thinking at the time? Was she consenting?
Step two-belief in consent-Subjective test
If she was not consenting did the offender believe the complainant was consenting to? what was the offender thinking at the time?
Step three-reasonable grounds for belief and consent-objective test
If the offender believe the complainant was consenting to was that belief reasonable in the circumstances? What would a reasonable person have believed if placed in the same position as the defendant?
R v Gutuama
Under the object of test the crown must prove that no reasonable person in the accused shoes could have thought that the complainant was consenting
Define 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
Define Sexual Connection
(A) connection effected by the introduction into the genitalia or anus of one person otherwise than for genuine medical purposes:
i) A part of the body of another person or
ii) and object house 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 paragraph b
