Sexual Violation by Unlawful Sexual Connection Flashcards Preview

CIB 007 - Sexual Offences > Sexual Violation by Unlawful Sexual Connection > Flashcards

Flashcards in Sexual Violation by Unlawful Sexual Connection Deck (18)
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1

Section and Penalty

S128(1)(b) CA61

20 Years Imp

2

Ingredients

1) A person
2) Has Unlawful Sexual Connection With
3) Another Person

3

Person

Gender Neutral. Proven by Judicial notice or circumstantial evidence.

4

Unlawful Sexual Connection

S128(3) CA61

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.

5

Sexual Connection

S2 CA61

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)

6

Introduction/Penetration

S2(1A) CA61

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

7

Proof of penetration is required

Proof may be provided by:
- Complainants evidence
- Medical examinations (DNA, injuries)
- Accused's admissions

8

Genitalia

S2 CA61

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).

9

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.

10

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).

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.

13

Allowing Sexual Activity does not amount to Consent in some Circumstances

Matters that do not Constitute Consent

S128A CA61

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) 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

(3) If the activity occurs while he or she is asleep or unconscious.

(4) 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.

(5) 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.

(6) With another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.

(7) If he or she allows the act because he or she is mistaken about its nature and quality.

14

Reasonable Grounds Three Step Process

Subjective Test - Step 1

Absence of Consent

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

15

Reasonable Grounds Three Step Process

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.

16

Reasonable Grounds Three Step Process

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.

17

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.

18

No Presumption because of Age

S127 CA61

There is no presumption of law that a person is incapable of sexual connection because of his or her age.