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1
Q

Sexual violation defined

A

s128 - Sexual Violation Defined

(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 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.

(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.

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

2
Q

RAPE DEFINED

A

s128(2) – RAPE DEFINED

  1. 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,—
    1. without person B’s consent to the connection; and
    2. without believing on reasonable grounds that person B consents to the connection.
3
Q

Genitalia

A

s2, 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)

4
Q

Penis

A

Penis

The male organ of reproduction

Penis - s2, CA61

Includes a surgically constructed or reconstructed organ analogous to naturally occurng penis. (whether the person concerned is male, female or of indeterminate sex).

5
Q

Consent

A

Consent

Consent is a person’s conscious and voluntary agreement to do 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’.

6
Q

Non consent under certain circumstances

A

s128A, CA 61 - Non consent under certain circumstances

A person does not consent to sexual activity under certain circumstances. Matters that do not constitute consent:

  • not protesting or offering physical resistance use of force, threats of force, or fear of force
  • asleep or unconscious
  • so affected by alcohol / drugs they cannot consent
  • so affected by mental or physical impairment they cannot consent
  • mistaken ID
  • mistaken as to nature and quality of the act
7
Q

Reasonable Grounds (3 step process)

A

Reasonable Grounds (3 step process):

Subjective test – Absence of consent

  • What was the complainant thinking at the time
  • Was she consenting?

Subjective test – Belief in consent

  • If she wasn’t consenting, did the offender believe she was consenting?
  • What was the offender thinking at the time.

Objective test – R/Grounds for belief in consent

  • If the offender believed the complainant was consenting, was that belief reasonable?
  • I.E. what would a reasonable person have believed if placed in the same position as the defendant?

R v GUTUAMA

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.”

8
Q

PROOF OF AGE

A

PROOF OF AGE

  • Involves producing the victim’s birth certificate
  • Along with with independent evidence that identifies the victim as the person named in the certificate.

R v FORREST AND FORREST

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.

9
Q

Unlawful Sexual Connection

A

s128(3) CA61 – Unlawful Sexual 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 on reasonable grounds that person B consents to the connection.

10
Q

Introduction / Penetration

A

Penetration

Section 2(1A), Crimes Act 1961

introduction to the slightest degree is enough to effect a connection.

11
Q

Definition of a young person

A

s134(6), CA 61

Young person means a person under the age of 16 years

12
Q

Definition of Child

A

s132(6), CA 61

Child means a person under the age of 12 years

13
Q

Indecent act

A

Indecent act

An act accompanied by circumstances of indecency.

14
Q

Indecent assault

A

s135, CA61 - Indecent assault

Every one is liable to imprisonment for a term not exceeding 7 years who indecently assaults another person.

R v Leeson

“The definition of ’indecent assault’ … is an assault accompanied with circumstances of indecency …”

15
Q

Definition of sexual connection?

A

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)

16
Q

Define section 131 Crimes Act 1961

A

131 - Sexual conduct with dependent family member

(1) Every one is liable to imprisonment for a term not exceeding 7 years who has sexual connection with a dependent family member under the age of 18 years.
(2) Every one is liable to imprisonment for a term not exceeding 7 years who attempts to have sexual connection with a dependent family member under the age of 18 years.
(3) Every one is liable to imprisonment for a term not exceeding 3 years who does an indecent act on a dependent family member under the age of 18 years.

17
Q

What is the definition of Dependant family member

(1)(a)

A

131A (1)(a) - Dependent family member defined

(1) one person is a dependent family member of another person—
(a) if the other person has power or authority over him or her, and is—

  • (i) his or her parent, step-parent, foster parent, guardian, uncle, or aunt; or
  • (ii) a parent, step-parent, or foster parent of a person described in subparagraph (i); or
  • (iii) a child of his or her parent or step-parent; or
  • (iv) the spouse or de facto partner of a person described in subparagraph (i) or subparagraph (ii) or subparagraph (iii);
18
Q

What is the definition of a dependant family member

(1)(b)

A

s131A(1)(b) - Dependent family member defined

(b) if they are members of the same family, whanau, or other culturally recognised family group, and the other person—
(i) is not a person referred to in paragraph (a); but
(ii) has a responsibility for, or significant role in, his or her care or upbringing; or

19
Q

What is the definition of a dependant family member

(1)(c)

A

131ADependent family member defined

(1) For the purposes of section 131, one person is a dependent family member of another person—
(c) if he or she is living with the other person as a member of the other person’s family, and the other person is not a person referred to in paragraph (a), but has—
(i) power or authority over him or her; and
(ii) a responsibility for, or significant role in, his or her care or upbringing.

20
Q

Define Section 130 Crimes Act 1961

A

Incest - s130 CA 1961 - 10 Years

(1) Sexual connection is incest if—
(a) it is between 2 people whose relationship is that of

  • parent and child,
  • siblings, half-siblings, or
  • grandparent and grandchild; and

(b) the person charged knows of the relationship; and
(2) must be over the age of 16 years of age

21
Q

Proof of penetration can be defined by what other evidence?

A

Proof may be provided by:

  • The complainants evidence
  • medical examinations
  • accuseds admissions
22
Q

What is the definition of Immaterial matters

A

If such an act has been done with the consent of the child/Young person it is immaterial if:

  • The offender does the act on the child
  • The child does the act on the offender
  • the act is mutal