Sexual violation

Question 1

Rape

Answer 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

Non consensual penetration of female’s genitalia by offender’s penis.

Question 2

Penetration

Answer 2

Introduction and penetration have same meaning.

Introduction to the slightest degree is enough to effect a connection

Question 3

Female Genitalia

Answer 3

Genitalia includes a surgically (re)constructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female, or indeterminate sex.)

Question 4

Male Genitalia

Answer 4

Penis includes a surgically (re)constructed organ analogous to a naturally occurring penis (whether the person is male, female or of indeterminate sex)

Question 5

Genitalia - Case Law

Answer 5

R V KOROHEKE
The genitalia comprise the reproduction organs, interior and exterior . They include the vulva and labia, both interior and exterior, at the opening of the vagina.

Question 6

Consent - definition

Answer 6

Conscious and voluntary agreement to something desired or proposed by another.

Question 7

Consent - Case Law

Answer 7

R v COX

“Full, voluntary, free and informed…freely and voluntarily given by a person in a position to form rational judgement”

Question 8

Matters that do NOT constitute consent - s128A

Answer 8

1) Not protesting or offering physical resistance to use of force
2) Force is applied to person or another person, threats of force, or fear of force to self or others
3) Asleep or unconscious
4) So affected by drugs or alcohol they cannot consent
5) So affected by mental or physical impairment they connect consent
6) Mistaken ID
7) Mistaken as to nature and quality of the act

Question 9

Reasonable grounds for consent - Case Law

Answer 9

R v GUTUAMA

“No reasonable person in the accused’s shoes could have thought that the complainant was consenting.”

Question 10

s128(1)(a) - ingredients

Answer 10

1) A person
2) Rapes
3) Another person

Question 11

s128(1)(b) - ingredients

Answer 11

1) A person
2) Has unlawful sexual connection
3) With another person

Question 12

Unlawful sexual connection – definition

Answer 12

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

Any form of non-consensual penetration or oral connection with a person’s genitalia or anus.

Question 13

Sexual connection – definition

Answer 13

a) Connection effected by 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 as described

Question 14

s128(1)(b) - to prove

Answer 14

1) Intentional act by offender involving sexual connection with victim AND
2) Victim did not consent AND
3) Did not believe victim was consenting AND
4) If did believe consent the grounds for such belief were not reasonable

Question 15

Continuation

Answer 15

Sexual activity is commenced consensually, but consent is later withdrawn. There is an obligation to stop sexual activity at the point they realise the other person no longer willing

Question 16

Presumption of age

Answer 16

Means that any person of any age is capable, in legal sense, of being involved in sexual connection

Question 17

Absence of consent

Answer 17

What was the complainant thinking at the time? is she/he consenting?

Question 18

Belief in Consent

Answer 18

Is she/he were not consenting did the offender believe that the complainant was consenting? Ie what was the offender thinking at the time?

Question 19

Reasonable grounds for belief in consent

Answer 19

if the offender believed that the complainant was consenting, was that belief reasonable in the circumstances? ie. what would a reasonable person have believed if placed in the same position as the Defendant?

Question 20

Recklessness as to consent

Answer 20

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

Question 21

Lack of protestor resistance

Answer 21

A lack of protest or resistance does not mean a person is consenting, even if
the lack of consent has not been communicated to the defendant; what is relevant is the complainant’s state of mind.
The fact that the complainant’s lack of consent has not been communicated to
the defendant may, however, be relevant to whether he believed she was
consenting, and whether that belief was reasonable.

Question 22

Force, threat or

fear of force

Answer 22

Force
Allowing sexual activity does not amount to consent to sexual connection if
some degree of force has been used to obtain compliance. Although the Act
does not specify the degree of force necessary, force that is intended or
sufficient to cause bodily harm would normally negate a claim that consent
had been given. A lesser degree of force would be accepted if it caused the
victim to submit or acquiesce to the act.
Threat
The threat must be a threat to use force against the victim or some other
person. Again, the circumstances of the case will establish whether the threat
was sufficient to negate the claim of genuine consent.
Fear
The victim must be afraid that force will be used against them or another
person, even if the force was not actually used or threatened

Question 23

Asleep or unconscious

Answer 23

Section 128A(3) states in absolute terms that sexual activity while the
complainant is asleep or unconscious is non-consensual, based on the fact that
the relevant time for consent is the time of the sexual activity without
reference to things said or done before or afterwards.
Therefore even prior agreement to sexual activity that is to occur once the
complainant is asleep or unconscious does not constitute consent.

Question 24

Affected by alcohol

Answer 24

The influence of alcohol and drugs may have an impact on a person’s ability
to give valid consent, however consent is not invalid simply because the
person is intoxicated. The question is whether they were affected to such an
extent that they were incapable of understanding the situation and giving
rational or reasoned consent.

Question 25

Intellectual,
mental or
physical
impairment

Answer 25

Where the validity of a person’s consent is in question due to impairment, the
issue is whether the impairment was sufficiently severe so as to deprive the
complainant of the capacity to give or withhold consent

Question 26

Mistake as to identity

Answer 26

The complainant’s consent is nullified if it is based on the mistaken identity
of the other person.

Question 27

s129(2) - ingredients

Answer 27

1. A person
2. Assaults Another person
3. With intent to commit sexual violation
4. of another person

Question 28

Assaults definition

Answer 28

The act of intentionally applying or attempting to apply force to the person of another directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable gournds that he has, present ability to effect his purpose and to assault has a corresponding meaning.

Question 29

The mens rea element 129(2)

Answer 29

It must be proved that at the time the defendant assaulted the complainant he:
• intended to have sexual connection with the complainant, and
• the complainant did not consent to the sexual connection, and
• the defendant did not believe on reasonable grounds that the complainant
was consenting

Question 30

Proof of unlawful connection

Answer 30

1) The complainant’s evidence
2) medical examination
3) Person’s admission.