Sexual Violation by Rape

Question 1

Section and Penalty

Answer 1

CA61; S128(1)(a)

20 Years Imp

Question 2

Elements

Answer 2

1. A person:
- Gender neutral
RTS

2. Rapes:
- Definition
- Genitalia / Penis R v Koroheke / CA61 s2
- Penetration R v Koroheke and how evidence of penetration can be established
- Consent (lack thereof) R v Cox / R v Gutuama / R v Koroheke / R v Adams
- CA61; 128A (invalid consent)
- Subjective/Objective test
RTS

3. Another person:
- Gender neutral, age irrelevant to the charge
RTS

Question 3

Person A - the offender

Answer 3

The legislation defines rape in terms of “Person A” (the offender) who rapes “Person B” (the complainant).

It is generally accepted by judicial notice or proved by circumstantial evidence.

Question 4

Rape defined

Answer 4

CA61; S128(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.

So “rape” is a specific form of unlawful sexual connection that involves the penetration of the complainant’s genitalia by the offender’s penis.

Question 5

Sexual connection

Answer 5

CA61; S2

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)

Question 6

Introduction / Penetration

Answer 6

CA61; S2(1A)

Introduction and penetration have the same meaning. Introduction to the slightest degree is enough to effect a connection.

Note: the offence of rape specifically involves penetration of the complainant’s genitalia by the offender’s penis; all other forms of non-consensual sexual connection are captured under S128(1)(b).

Question 7

Proving penetration

Answer 7

Proof of penetration may be established by:

• Complainant’s evidence
• Medical examination, including physical injuries and DNA evidence
• The defendant’s admissions.

Question 8

Person B - the complainant

Answer 8

It is a gender neutral offence; the person’s biological gender is not relevant.

The complainant’s age is also not relevant to charges under S128, as the criminality involves sexual connection with a person without their consent, irrespective of their age.

NB - age is relevant to S132; 134 and other sections of CA61.

Question 9

Genitalia

Answer 9

CA61; S2

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).

Question 10

R v Koroheke

Genitalia

Answer 10

R v Koroheke

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.

Question 11

Penis

Answer 11

CA61; S2

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).

Question 12

Consent

Answer 12

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

Question 13

R v Cox - consent

Answer 13

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

Question 14

R v Koroheke - Consent

Answer 14

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 15

Reluctant consent

(of note only)

Answer 15

R v Herbert:

The Court held that a true consent may be given reluctantly or hesitantly and may be regretted afterwards, but if the consent is given even in such a manner, provided it is without fear of the application of force or the result of actual or threatened force, then the act of sexual connection would not be rape.

Question 16

Matters that do not constitute consent (PIN FAIA)

Answer 16

CA61; S128A

A person does not consent to sexual activity:

(1) Just because he or she does not Protest or offer physical resistance to the activity
(2) With another person if he or she allows the sexual activity because he or she is mistaken about the other person’s Identity.
(3) If he or she allows the act because he or she is mistaken about its Nature and quality.

(4) If he or she allows the activity because of
- Force applied to him or her or some other person
- The threat (express or implied) of the application of force to him or her or some other person
- The fear of the application of force to him or her or some other person

(5) If the activity occurs while he or she is Asleep or unconscious.
(6) If the activity occurs while he or she is affected by an Intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
(7) If the activity occurs while he or she is so affected by Alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.

Question 17

Subjective Test - absence of consent

Answer 17

Whether or not the complainant was consenting is a subjective test from the complainant’s point of view, ie what was the complainant thinking at the time?

The Crown must prove that the complainant was not consenting to the sexual act at the time it occurred - it is not for the defendant to prove that he/she was consenting.

Question 18

Subjective test - belief in consent

Answer 18

If it is established that the complainant was not consenting, the next question is whether or not the defendant believed he/she was consenting at the time. This is a purely subjective test from the defendant’s point of view, ie what was the defendant thinking at the time?

If he/she did believe he/she was consenting, an objective test must then be applied to determine whether there was a reasonable basis for his/her belief.

Question 19

Objective test - reasonable grounds for belief in consent

Answer 19

What would a reasonable person have believed if placed in the same position as the defendant?

If a reasonable person would, in the same circumstances, have believed the complainant was consenting, the jury may well acquit the defendant. If a reasonable person would not have believed he/she was consenting, the jury is more likely to convict.

Question 20

R v Gutuama

Answer 20

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.

Question 21

Recklessness as to consent

Answer 21

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

Question 22

When is consent relevant?

Answer 22

R v Adams:

The material time when consent, and belief in consent, is to be considered is at the time the act actually took place.