Sexual violation by unlawful sexual connection Flashcards
Section and Penalty
CA61; S128(1)(b)
20 Years Imp
Sexual violation by unlawful sexual connection
Elements
1. A person:
- Gender neutral
RTS
2. Has unlawful sexual connection with:
- Definition (eg sexual connection as per CA61; s2, and when this becomes unlawful sexual connection).
- Genitalia / Penis / Vagina / Tongue R v Koroheke / CA61 s2
- Penetration / contact / 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
Person
It is a gender neutral offence and can be committed by a male or a female. The fact that the offender is a ‘person’ is generally accepted by judicial notice or proved by circumstantial evidence.
Unlawful Sexual Connection - Definition
CA61; S128(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.
Sexual Connection
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)
Introduction / Penetration
CA61; S2(1A)
Introduction and penetration have the same meaning. Introduction to the slightest degree is enough to effect a connection.
Proof of penetration is required
Proof of penetration may be established by:
- Complainant’s evidence
- Medical examination, including physical injuries and DNA evidence
- The defendant’s admissions.
Genitalia
CA61; S2
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).
R v Koroheke
Genitalia
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.
Penis
S2 CA61
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).
Consent
Consent is a person’s conscious and voluntary agreement to 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.
R v Koroheke - Consent
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.
Matters that do not constitute consent
S128A CA61
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.
Reasonable Grounds Three Step Process
Step 1 - Subjective Test - Absence of Consent
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.
