Women and Justice: Keywords

Domestic Case Law

Ah-Chong v. The Queen Supreme Court of New Zealand (2015)

Sexual violence and rape

Appellant Ah-Chong was convicted of assault with intent to commit sexual violation by rape.  As a defense, Ah-Chong claimed that the victim consented to the sexual activity.  The trial judge gave the jury instructions that they had to be satisfied beyond a reasonable doubt that the defendant had no reasonable grounds to believe that consent existed.  The appellant argued that the jury instructions were wrong, claiming that there were two separate mens rea elements: one for the assault and one for intention to rape.  The Supreme Court previously held in L v R that only a reasonable belief of consent, even if mistaken, could provide a defense to the charge of sexual violation by rape.  The appellant argued that a mistaken belief of consent constitutes a defense to the charge of assault, even if the belief was unreasonable.  The Court rejected this jury instruction.  The trial judge correctly informed the jury that based on the complainant’s account of the event, there was no possibility of finding a mistaken belief in consent relating to the assault, but not the intention to rape.  The Court extended the analysis from L v. R, holding that the mental element for attempted rape was satisfied if there was a mistaken and unreasonable belief that consent was present.



S (CA338/2016) v. The Queen Court of Appeal of New Zealand (2017)

Domestic and intimate partner violence, Sexual violence and rape, Statutory rape or defilement

Appellant (who was 38 years of age at the time of the offences) appealed a sentence of imprisonment for kidnapping, disfiguring with intent to injury and wounding with intent to injure the complainant (who was 17 years of age at the time of the offences).  The complainant and appellant began a relationship after the complainant left the care of Child, Youth and Family (Ministry for Vulnerable Children).  The appellant accused the complainant of sexually assaulting his daughter. As punishment for the sexual assault and a condition for continuing their relationship, he convinced the complainant to allow him to break her finger with a rock. He subsequently subjected the complainant to other physical abuse, after which she fled to a neighbor for help.  The appellant argued at the Court of Appeal that a High Court Judge had wrongly withheld the defense of consent on the charge of wounding with intent to injure.  The Court dismissed the appeal and concluded that it was possible to eliminate the defense of consent depending on the specific facts of the case.  In this case, the Court found it permissible to eliminate the defense of consent because of the power imbalance between the parties, the fact that the complainant acquiesced because of a threat to their relationship, the gravity of domestic violence, and the severity of the injury.