Sexual Offence Definitions Flashcards
Person
Proven by Judicial notice or circumstantial evidence.
Rape (Verbatim)
CA.61 S.128(2)
A rapes B if A has sexual connection with B effected by the penetration of B’s genitalia by A’s penis-
a) without B’s consent to the connection AND
b) without believing on RG that B consents to the connection
Penetration
Introduction to the slightest degree is enough to effect a connection.
Penetration = Introduction
Proof of penetration is required, 3 ways of proving:
- Complainants evidence
- Medical exam
- Accused admission
Genitalia
R V KOROHEKE
comprise the reproduction organs, interior and exterior … they include the vulva and labia, at the opening of the vagina.
S.2
Includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (regardless of sex).
Consent
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 a rational judgement.
7 Matters that Do Not Constitute Consent
CA.61 S.128A
PAASSMM
- Not protesting or offering physical resistance
- Application/threats/fear of force to self or other
- Asleep or unconscious
- So affected by drugs/alcohol they cannot consent
- So affected by mental or physical impairment they cannot consent
- Mistaken ID
- Mistaken as to nature and quality of the act
Three Step Process of establishing Reasonable Grounds
A B R
1. Subjective Test - Absence of Consent
The complainant did not consent to the sexual act AND
2. Subjective Test - Belief in Consent
The offender did not believe the complainant was consenting OR
3. Objective Test - RG for belief in Consent
If he did believe she was consenting the grounds for such belief were not reasonable
R v GUTUAMA
Under the objective test the Crown must prove that “No reasonable person in the accused shoes could have thought that the complainant was consenting.”
(Walk in Guatama’s shoes).
Unlawful Sexual Connection
CA.61 S128(3)
A has unlawful SC with B if A has SC with B
a) without B’s consent to the connection AND
b) without believing on RG hat B consents to the connection
Sexual Connection
CA.61 S.2
a) connection effected by the introduction into the genitalia or anus of one person (otherwise than for genuine medical purposes) of
- a part of the body of another person
- an object manipulated by another person
b) connection between the mouth or tongue of one person and a part of another person genitalia or anus
c) the continuation of connection in a kind described
Dependant Family Member
CA.61 S.131A(1) (a)
For the purpose of s.131, A is a dependant of B if:
a) B has power or authority over A AND
i) parent,step parent, foster parent, guardian, uncle/aunt OR
ii) parent, step parent or foster parent of above
iii) a child of their parent or step parent OR
iv) spouse or de facto partner of a person in i) ii) or iii)
Dependant Family Member
CA.61 S.131A(1)(b)
For the purpose of s.131, A is a dependant of B if:
b) they are members of the same family, whanau, or culturally recognised family group, and B:
i) is not a person referred to in (a)
ii) has a responsibility for, or a significant role in, A’s upbringing
Dependant Family Member
CA.61 S131A(1)(c)
For the purpose of s.131, A is a dependant of B if:
A is living with B as a member of the B’s family, and B is not the person referred to in (a) or (b) but has:
i) power orauthroity over him or her
ii) a responsibility for or significant role in A’s care or upbringing
Prove Age
R V FORREST AND FORREST
The best evidence possible in the circumstance should be adduced by the prosecution in proof of the victims age.
In practice usually birth certificate and independent evidence that identifies victim as person named.
