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CIB Modules 22/23 - Mwby42 > 007- Sex Offences > Flashcards

007- Sex Offences Flashcards

1
Q

Define sexual violation? Simply

A

Non consensual sexual connection with another person

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2
Q

What must the crown prove in all cases of sexual violation?

A

1- intentional act by offender involving sexual connection
2- complainant didn’t consent
3- offender didn’t believe was consenting or grounds for this belief not reasonable

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3
Q

Section for no legal defence for spouses for rape or unlawful sexual connection charges?

A

128(4)

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4
Q

Rape definition as per 128(2)

A

Effected by the penetration of person B genitalia by person A penis AND

Without B”s consent and w/o belief on reas grounds that they consent to the connection

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5
Q

What are the 2 forms of sexual violation under S128(1)?

A

a) rape of another person
b) unlawful sexual connection with another person

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6
Q

Unlawful sexual connection defined as per S128(3)

A

Person A has a sexual connection with person B w/o consent and w/o belief in reas grounds that person B consents

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7
Q

Sec 2 definition of sexual connection is……? (3 things)

A

Effected by the intro into genitalia/anus of one person of a body part of another or object held of manipulated

Connection between mouth or tongue of one and another’s genitalia/anus

Continuation of above

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8
Q

Sec 2 penetration: What amount of penetration is required to be proven?

A

Any degree of penetration no matter how slight or fleeting

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9
Q

How do we prove penetration? (3 things)

A

1- compl evidence
2- medical evidence (injuries/DNA)
3- def admissions

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10
Q

Sec 2 definition genitalia?

A

Reproductive organs including penis and testicles of a male and vagina/vulva of a female and any surgically constructed/altered genitalia analogous to male or female genitalia

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11
Q

R v KOROHEKE (genitalia)

A

Genitalia comprise the reproductive organs interior and exterior including the vulva and labia, both interior/exterior @ opening of vagina

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12
Q

Is penetration required in oral sexual connection charges?

A

Touching of another persons genitalia/anus with mouth/tongue is sufficient

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13
Q

Sec 127 - no presumption due to age- what does this section state?

A

Any person is capable- in law of being involved in sexual connection

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14
Q

Describe the subjective/objective test in relation to consent?

A

Subjective: (what were they thinking @ time)
Compl didn’t consent
Offender didn’t believe was consenting

Objective: (what should they have thought)
Grounds for any such belief not reasonable

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15
Q

What is consent?

A

Persons conscious/voluntary agreement to something desired/proposed by another

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16
Q

R v COX (consent)

A

Consent must be full free voluntary and informed, freely/voluntarily given by a person a in a position to form a rational judgement

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17
Q

R v GUTUAMA

A

“Gucci shoes of accused”

Under obj test crown must prove no reas person in accused shoes could thought compl was consenting

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18
Q

When is the material time consent considered to be relevant?

A

At the time the act took place

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19
Q

List possible reasons consent won’t be valid as per S128A?

A

1- no protest or resistance
2- allowed due to force/threat or fear of force
3- asleep/unconscious
4- so intoxicated
5- so impaired by intellectual/mental or physical impairment they can’t consent
6- mistaken ID
7- mistaken nature-quality (eg ghosting)

Not limited by above list

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20
Q

R v KOROHEKE (consent)

A

“KOROHEKE bash if no smash”

Important distinguish between consent freely given and submission to something u wanted or unavoidable

Eg - submission due to fear of what might happen if they don’t doesn’t = true consent

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21
Q

2 things a person must have done to be guilty of an attempt?

A

1- have an intent to commit the offence
2- real and substantial steps to committing offence

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22
Q

If it was physically impossible to commit the offence can you be guilty of an attempt?

A

In short yes. Sec 72 - “whether it was possible to commit the offence or not

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23
Q

What must the crown prove in relation to intent for an attempt offence?

A

That the def intended to commit the full offence.

(Attempts essentially means they fell short of the full offence AKA = fail!)

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24
Q

R v COLLISTER

A

Offenders Intent can be inferred from circumstances:
- actions/words before/during/after offence
- surrounding circumstances
- nature of act itself

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25
Q

R v HARPUR (attempts include)

A

An act or omission constituting a substantial step in commission of the crime

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26
Q

How is conduct sufficiently proximate determined by the court?

A

Analysis of the def”s conduct at relevant time in conjunction with evidence of their intent based on the circumstances

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27
Q

R v HARPUR (attempts conduct cumulative)

A

Court may view conduct cumulatively and in its entirety up to when the conduct stops

(What remains is relevant not determinative)

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28
Q

Liability: sexual conduct with child?

A

Sec 132(1)

1- person
2- has sexual connection
3- with a child

Cover no defence re consent

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29
Q

COX v R (10/11 consent)

A

The court Don’t exclude possibility a child 10/11 may be able to give full and free consent to sexual intercourse, circumstances justifying this would be exceptional if not rare

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30
Q

COX v R (10/11 reasonable adult re consent)

A

Except in exceptional/rare circ”s even if they agree, no reasonable adult has grounds for believing a 10/11 year old has experience/maturity to understand nature or significance of the act

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31
Q

R v FORREST & FORREST

A

Crown must adduce best evidence possible in the circumstances in order to prove the victims age

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32
Q

An indecent act is generally accepted to be what?

A

An act accompanied by circumstances of indecency
(R v LEESON)

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33
Q

R v COURT

A

“Court by right minded ppl”

Indecency mens conduct that right thinking ppl will consider an affront to the sexual modesty of the complainant

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34
Q

What are the 3 prongs of the defence to a 134 charge under section 134A?

A

1- before act, taken reas steps find out if YP of or over 16
2- believed on reas grounds that YP 16+
3- YP consented

35
Q

R v LEESON

A

Indecent assault is an assault accompanied with circumstances of indecency

36
Q

What 3 things must be proven in indecent assault charges?

A

1- intentionally assaulted vic
2- circumstances were indecent
3- def intended the conduct and a reasonable person would find indecent

37
Q

If consent is raised in an indecent assault charge what 2 other elements must be proven?

A

1- compl did not infact consent
2- def didn’t honestly believe they were consenting

38
Q

Can Indecent assault be an accidental act?

A

No, it must be intentional

39
Q

Liability: incest

A

Sec 130(1)

1- a person
2- has sexual connection (consensual member, yea I member)
3- with parent/child/siblings/grandparent/grandchild
4- and the person charged (16+) knew of the relationship

40
Q

Liability: SV by rape

A

Sec 128(1)(a)

1- a person
2- rapes
3- another person

41
Q

Liability: SV by U/L S.C.

A

Sec 128(1)(b)

1- a person
2- has unlawful sexual connection
3- with another person

42
Q

Liability: assault W int to commit Sexual violation

A

Sec 129(2)

1- a person
2- assaults
3- Another person
4- with intent to commit sexual violation of that person

43
Q

Liability: sexual conduct with dependent family member

A

Sec 131(1)

1- a person
2- has sexual connection (with consent member)
3- with a dependent family member
4- under the age of 18

44
Q

Liability: sexual conduct with a young person

A

Sec 134(1)

1- a person
2- Has sexual connection
3- with a young person

45
Q

Liability: Indecent assault

A

Sec 135

1- a person
2- indecently assaults
3- another person

46
Q

For a charge of incest how many parties need to consent to the sexual connection?

A

Consent is no defence, the connection must be with consent of both to amount to incest

47
Q

Sec 131A- Definition of dependent family member?

A

If the other person has power or authority over them and is:
a) Parent etc, uncle/aunt
Child of their parent

OR

b) Members of the same family and not a person from a) but has responsibility or significant role in upbringing

48
Q

What section is the offence: meeting young person following sexual grooming?

A

Sec 131B

49
Q

When is a 131B (meeting YP following g grooming etc) complete?

A

When the parties meet or def travels or makes arrangements to meet the complainant and with the relevant intent

50
Q

Section 44 evidence act states?

A

No question put to witness relating to sexual experience of complainant with any other person except the defendant and only with permission of the judge includes questions pertaining to their sexual reputation

51
Q

Sec 87 evidence act?

A

Particulars of a witnesses address may not be be the subject of any question or evidence or statement or remark by a witness or officer of the court except with permission of judge

52
Q

Sec 88 evidence act? (Sexua cases)

A

Restriction on questions to a witness about a complainants occupation

53
Q

Section 121 evidence act?

A

In any criminal proceeding the complainants evidence does not have to be corroborated

54
Q

Sec 35 evidence act?

A

Previous consistent statements rule
(Challenge veracity/accuracy)

Prior consistent statements generally only offered as rebuttal evidence.
To respond to a challenge to veracity or accuracy of the witness

55
Q

What does veracity mean?

A

Disposition of a person to refrain from lying

56
Q

Advantages of a visually recorded interview? (Level 3)

A
  • quality/quantity of info
  • minimise trauma to compl- evidence in chief via video
  • reduce contamination by interviewer creating written statement
  • best way to refresh memory for witness prior to trial
57
Q

How does a child video interview meet a child’s needs?

A
  • interview is focused on child, allows them to say what happened clearly and freely
  • recorded interview used for basis of investigation/prosecution/C+P matters
  • avoids re interviewing
58
Q

Evidence regulations 31 re SCWI?

A

Lawyers copy of SCWI- lawyer must place in safe custody and return ASAP after case

59
Q

What is section 131B CA 61?

A

Meeting a young person following sexual grooming

60
Q

When is an offence under S131B complete?

A

After prior grooming offender either:

Meeting YP
Travelling W intent to meet OR
Persuading YP to travel W intent to meet

61
Q

What is the defence to a grooming charge under S131B(2)

A

Reasonable steps establish age and @ time believed on reasonable grounds over 16

62
Q

What is S138 CA 61?

A

Sexual exploitation of person with significant impairment

63
Q

Key part of section 138(3) - when the act becomes an offence?

(Sex Exploitation 1M etc)

A

Knowing they have impairment and
Exploiting that to get participation in the act

64
Q

What is section 195A?

A

Failure to protect a child or vulnerable adult

65
Q

What does an offender have to fail to protect a child from under S195A?

A

The risk of:

Death
GBH
Sexual harm

66
Q

What is the mens rea component of a S195A offence?

(Failure protect child)

A

Knowing they are at risk of Death/GBH/sex harm

67
Q

What is the actus reus component of a S195A offence?

(Failure protect child)

A

Failing to take steps to protect child

(Doing nothing like not calling police)

68
Q

What is the defence under S134(4)?

A

Offender married to young person at time of act

69
Q

Evidence regulation 8?

(What must be on video record)

A

Date/time start
Each person ID self
Anyone else present
The full interview
Accurate way of measuring time in recording
Time of finish

70
Q

Evidence regulation 6?

(person to support witness)

A

Person may support interviewee If interviewer considers:

In interests of witness and
Person is appropriate support person

71
Q

Section 17 evidence regulations?

(Master copy kept/ID)

A

Sealed with a certificate set out in schedule
In safe custody with police

Must keep record of:
Date when received in custody
Who dealt with copy from that date
Reason for dealing with

72
Q

Section 18 evidence regulations?

(Working copy kept/ID)

A

ID as working copy by certificate
In safe custody with police

Record of person who views or had custody of working copy

73
Q

CP - what are OT timeframes for categorising CP matters?

A

Critical - 24 hrs

Very urgent - 48 hrs

Urgent - 7 days

74
Q

List 4 things victims should try refrain from before MEK?

A
  • eating/drinking
  • Toilet (females no wipe)
  • showering/washing
    (Include hands and nails)
75
Q

List points you would cover with a victim prior to MEK?

A
  • conducted by specially trained doctor for sexual assault victims
  • benefits of MEK to their physical/sexual/mental health
  • evidence to get offender
    -how long may take
  • any questions or preference
76
Q

Good things to reassure victims of ASA?
(Calmtea)

A

Conduct = sensitive
Accept - they telling truth
Listen to them
Medical attention needed??!
Treat courteously
Explain process/answer questions
Advise - counselling

77
Q

3 areas to consider when determining seriousness of physical abuse?

A

Action of the accused
Injury inflicted
Circumstances

78
Q

List 4 responsibilities to victims under victims rights act?

A
  • progress re investigation within 21 days
  • kept up to date re outcome and if no further lines or why no charges filed
  • ASAP after arrest determine if S29 offence and inform of VNR
  • outcomes and closure and return property
79
Q

Define child abuse as per OT act?

A

Harming, Ill treatment, abuse, neglect or deprivation of any CYP

80
Q

List some grounds for a witness to give evidence in an alternate way under S103 EA 06

A

Age/maturity
Impairment of witness
Trauma suffered
Fear or Intimidation
Nature of evidence or proceeding
Absence from nz

81
Q

List 3 ways a witness can give evidence under a 105 direction?

A

Screen- In court, unable to see defendant
AVL- somewhere else in court or elsewhere in nz
Video - EVI video prior to court

82
Q

What is required to be proven for a 195A failure to protect child charge?

A

Victim under 18
Defendant 18+
Defendant had frequent contact
Knowledge of risk of harm

83
Q

ASA 3 types of complaints and associated timings

A

Acute - within 7 days

Non acute - 7 days to 6 months

Historical - 6 months +

84
Q

What should an IJIP consider?

A
  • Immediate safety of child
  • refer to doctor (parental consent)
  • management of CFI
  • joint visit
  • physical evidence collection
  • any other actions

CIB Modules 22/23 - Mwby42 (10 decks)

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