Sexual Violation By Rape Flashcards Preview

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Flashcards in Sexual Violation By Rape Deck (18):
1

Section

128(1)(a) Crimes Act 1961

2

Penalty

20 years

3

Ingredients

1) A person
2) Rapes
3) Another Person

4

Person

Gender Neutral. Proven by Judicial notice or circumstantial evidence.

5

Rape

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.

Section 128 (2), Crimes Act 1961

6

Penetration

Introduction and penetration have the same meaning.

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

Section 2(1A) Crimes Act 1961.

7

Proof of penetration is required

Proof may be provided by:

- Complainants evidence
- Medical examinations (DNA, injuries)
- Accused's admissions

8

Section 2, Crimes Act 1961.

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

Section 2, Crimes Act 1961.

9

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.

R v Koroheke

10

Section 2, Crimes Act 1961.

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).

Section 2, Crimes Act 1961.

11

Consent

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

12

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.

R v Cox

13

Matters that do not constitute consent


Sec 128A, Crimes Act 1961

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

Sec 128A, Crimes Act 1961

14

Reasonable Grounds

The establishing of Reasonable Grounds is a three step process.

15

Subjective Test - Step 1

Absence of Consent

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

16

Subjective Test - Step 2

Belief in Consent

If she wasn't consenting, did the offender believe she was consenting. i.e. what was the offender thinking at the time.

17

Objective Test - Step 3

Reasonable grounds for belief in consent

If the offender believed the complainant was consenting, was that belief reasonable in the circumstances. i.e. what would a reasonable person have believed if placed in the same position.

18

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.