Sexual Violation By Unlawful Sexual Connection

Question 1

Section

Answer 1

128(1)(b), Crimes Act 1961

Question 2

Penalty

Answer 2

20 years

Question 3

Ingredients

Answer 3

1) A Person
2) Has Unlawful Sexual Connection
3) With another Person

Question 4

Person

Answer 4

Gender Neutral. Proven by Judicial notice or circumstantial evidence.

Question 5

Unlawful Sexual Connection

Answer 5

Sec 128(3) Crimes Act 1961

Unlawful Sexual Connection:

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.

Question 6

Sexual Connection

Sec 2, Crimes Act 1961

Answer 6

Sexual Connection:

(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).

Sec 2 Crimes Act, 1961

Question 7

Penetration

Answer 7

Introduction and penetration have the same meaning.

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

Section 2(1A) Crimes Act 1961.

Question 8

Proof of penetration is required

Answer 8

Proof may be provided by:

• Complainants evidence
• Medical examinations (DNA, injuries)
• Accused’s admissions

Question 9

Genitalia - Sec 2, Crimes Act 1961.

Answer 9

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.

Question 10

R v Koroheke

Answer 10

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

Question 11

Objects held or manipulated

Answer 11

Any object that can be held or manipulated by the other person eg; bottle or vibrator

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

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.

R v Cox

Question 14

Matters that do not constitute consent

Sec 128A, Crimes Act 1961

Answer 14

• 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

Question 15

Reasonable Grounds

Answer 15

The establishing of Reasonable Grounds is a three step process.

Question 16

Subjective Test - Step 1

Answer 16

Absence of Consent

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

Question 17

Subjective Test - Step 2

Answer 17

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.

Question 18

Objective Test - Step 3

Answer 18

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.

Question 19

R v Gutuama

Answer 19

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 20

Another Person

Answer 20

Gender neutral. Proven by Judicial notice or circumstantial evidence.