Sexual Violation

Question 1

What is the definition and two classes of sexual violation?

Answer 1

non-consensual sexual connection

• sexual violation by rape
• sexual violation by unlawful sexual connection

Question 2

Definition of rape (generally)?

Answer 2

sexual violation that involved the non-consensual penetration of the complainants genitalia by the offenders penis

Question 3

Definition of unlawful sexual connection (generally)?

Answer 3

any form of non-consensual penetration or oral connection with a persons genitalia or anus

Question 4

In all cases of sexual violation what must the Crown prove?

Answer 4

• there was an intentional act by the offender involving a sexual connection with the complainant
• the complainant did not consent to the sexual act
• the offender did not believe the complainant was consenting
• if the offender did believe they were consenting, the grounds for such a belief were not reasonable.

Question 5

What does s128(4) make clear?

Answer 5

A spouse who sexually violates their spouse has no legal defense due to the fact that the couple ore legally married.

Question 6

Definition of sexual connection?

Answer 6

Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purpose, of -

a) a part of the body of another person, or
b) an object held or manipulated by another person.

Question 7

How can proof of penetration be established?

Answer 7

• the complainants evidence-
  medical examination, including physical injuries and DNA
• the defendants admissions.

Question 8

Definition of genetalia as per section 2 of the CA 61?

Answer 8

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

Question 9

R v Koroheke (genitalia)

Answer 9

The genetalia comprise the reproductive organs, interior and exterior … they include the vulva and the labia, both interior and exterior, at the opening of the vagina.

Question 10

Definiton of penis as per section 2 of the CA 1961?

Answer 10

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

Question 11

Section 127 CA 1961?

Answer 11

No presumption because of age.

There is no presumption of law that a person is incapable of sexual connection because of his or her age. Therefore it is not a defense to say that either of the parties was too young or too old to have sex.

Question 12

Consent subjective/objective test?

Answer 12

The crown must prove that:

• the complainant did not consent to the sexual act
• the offender did not believe that complainant was consenting
• if they did, the grounds for such a belief were unreasonable

Question 13

Definition of consent

Answer 13

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

Must be real, genuine, true, and may be conveyed by words or conduct or both.

Question 14

R v Cox

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.

Question 15

R v Gutuama

Answer 15

Under the objective test the crown must prove that “no reasonable person in the accused shoes could have thought that the complainant was consenting”

Question 16

Recklessness as to consent

Answer 16

recklessness as to whether the complainant is consenting is not consistent with having a reasonable belief in consent

Question 17

Matters not constituting consent?

Answer 17

s128A:

1. does not protest or offer physical resistance
2. allows because of force applied to her or some other person (or fear of..)
3. asleep or unconscious
4. so affected by alcohol
5. affected by intellectual, mental or physical condition or impairment
6. mistaken identity
7. mistaken about nature and quality

Question 18

R v Koroheke

Answer 18

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.

Question 19

Sexual violation by rape legislative definition

Answer 19

(1) Sexual violation is the act of a person who -

(a) rapes another person

Question 20

Rape definition as per section 128(2)

Answer 20

Person A rapes person B if person A has sexual connection with person B, effected by penetration of person B’s genetalia 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.

Question 21

Sexual violation by unlawful sexual connection legislative definition

Answer 21

(1) sexual violation is the act of a person who -

(b) has unlawful sexual connection with another person

Question 22

Unlawful sexual connection legislative definition

Answer 22

Person A has unlawful sexual connection with person B is person A has sexual connection with person B -

(a) without person B’s consent to the the connection; and
(b) without believing on reasonable grounds that person B consents to the connection