Sexual Offences Flashcards Preview

CIB Modules 2018 > Sexual Offences > Flashcards

Flashcards in Sexual Offences Deck (90)
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1

Section 128B(1) CA61

Every one who commits sexual violation is liable to imprisonment for a term not exceeding 20 years

2

Section 128B(2) CA61

A person convicted of sexual violation must be sentenced to imprisonment unless, having regard to the matters stated in subsection (3), the court thinks that the person should not be sentenced to imprisonment.

3

Section 128B(3) CA61

The matters are (referred to in 128B(2))-
(a) the particular circumstances of the person convicted; and
(b) the particular circumstances of the offence, including the nature of the conduct constituting it.

4

Sexual violation

s128(1) Sexual violation is the act of a person who:
(a) rapes another person; or
(b) has unlawful sexual connection with another person.

5

Rape definition

Sec 128 (2)
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,—
(a) without person B's consent to the connection; and
(b) without believing on reasonable grounds that person B consents to the connection.

6

U/L Sexual Connection definition

Sec 128 (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 on reasonable grounds that person B consents to the connection.

7

Sec 128 (4) CA61

One person may be convicted of the sexual violation of another person at a time when they were married to each other.

8

Sexual Connection means...

Sec 2, CA61
Sexual connection means—
(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)

9

Penetration/Introduction

Section 2, CA61:
“sexual connection”, introduction to the slightest degree is enough to effect a connection.

10

Proving Penetration

• the complainant’s evidence
• medical examination, including physical injuries and DNA evidence
• the defendant’s admissions.

11

Genitalia

Sec 2, CA61:
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)

12

R v Koroheke
- genetalia

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.

13

Penis

Sec 2, CA61:
Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female, or of indeterminate sex)

14

Presumption because of age

Section 127, CA61:
There is no presumption of law that a person is incapable of sexual connection because of his or her age.

15

Consent - Sub/Obj test

The Crown must prove that:
• the complainant did not consent to the sexual act (a subjective test), and
• the offender did not believe the complainant was consenting (a subjective test), or
• if he did believe she was consenting, the grounds for such a belief were not reasonable (an objective test).

16

Consent

“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.

17

R v Cox
- Consent

Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment”.

18

R v Gutuama
- re reasonableness 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”.

19

Matters not constituting consent

Sec 128A CA61 (in brief):
- does not protest or offer physical resistance to the activity.
- force applied to him or her or some other person; or
- fear or threat (express or implied) of the application of force to him or her or some other person
- asleep or unconscious.
- so affected by alcohol or some other drug
- affected by an intellectual, mental, or physical condition or impairment
- Mistaken about who the other person is.
- Mistaken about its nature and quality.

20

R v Koroheke
- consent

It is important to distinguish between consent that is freely given and submission by a woman 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.

21

Sexual violation by rape
- section?

Sec 128, CA61 (1)(a)
A person rapes another person

22

Sexual violation by unlawful sexual connection
- section?

Sec 128, CA61 (1)(b)
A person has unlawful sexual connection with another person

23

Attempted Sexual Violation

Sec 129(1), CA61
Every one who attempts to commit sexual violation is liable to imprisonment for a term not exceeding 10 years.

24

Assault with intent to commit sexual violation

Sec 129(2), CA61
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.

25

R v Mohan

Intent involves “a decision to bring about, in so far as it lies within the accused's power, the commission of the offence ...”

26

Intentionally meaning

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.

27

R v Waaka

A “fleeting or passing thought” is not sufficient; there must be a “firm intent or a firm purpose to effect an act”.

28

Circumstances of intent

• the offender’s actions and words before, during and after the event
• the surrounding circumstances
• the nature of the act itself.

29

R v Harpur
- attempt

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”.

30

R v Harpur
- attempt - proximate

“[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.”