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R v Court
Indecency means conduct that right-thinking people will consider to be an affront to the sexual modesty of the complainant.
R v Forrest and Forrest
The best possible evidence in the circumstances should be adduced by the prosecution in proof on the victim’s age.
R v Koroheke
Genitalia comprises the reproductive organs, internal and external includes the vulva and labia both interior and exterior at the opening of the vagina.
R v Leeson
An indecent assault is an assault accompanied by circumstances of indecency.
R v Mohan
Intent involves a decision to bring about in so far as it lies within the accused power the commission of the offence.
R v Waaka
A fleeting or passing thought is not sufficient, there must be firm intent or firm purpose to effect an act.
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 Gutuama
Under the objective test the prosecution must prove that no reasonable person in the defendant’s shoes could have thought the complainant was consenting.
R v Harpur
An attempt includes an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime….The court may have regard to the conduct view cumulatively up to the point when the conduct in question stops … The defendant’s conduct may be considered in its entirety. Considering how much remains to be done is always relevant, though not determinative.
R v Collister
…the demeanour of the prisoner and the circumstances of the case are such that an ordinary reasonable man would understand that a demand for money was being made on him.
R v Kaitamaki
If, after he has penetrated a woman, a man realises she is not consenting (or has never consented) but he continues … that act of intercourse becomes rape.
R v Dunn
The test for indecency is whether the conduct offends against a reasonable and recognised standard of decency which ordinary and reasonable members of the community ought to impose and observe in this day and age.
Under s128A CA61, allowing sexual activity does not amount to consent in some circumstances. What are those circumstances?
Non-consent in certain circumstances s128A CA 611. does not protest or offer physical resistance2. force, threat or fear of force applied to him/her or some other person3. asleep or unconscious4. intoxicated5. intellectual, mental or physical impairment6. mistaken id7. mistaken about nature and quality of the act8. no limit to circumstances in which a person does not consent
Explain ‘connection’.
In the case of oral sexual connection it is not necessary for there to be penetration; any touching of the person’s genitalia or anus with another person’s mouth or tongue is sufficient
What is the principle difference between rape and unlawful sexual connection?
Rape is a specific form of sexual connection that involves the penetration of the complainants genitalia by the offenders penis.
Define Sexual Connection.
Sexual Connection s2 CA61 (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) continuation of connection of a kind described in para (a) or para (b)
What 3 things must the crown prove regarding consent under s128 CA61?
• The complainant did not consent.• The offender did not believe the complainant was consenting• If he did believe she was consenting, the grounds for such belief were not reasonable
Explain Anus.
Not included in the definition of genitalia - has its normal meaning.
Define unlawful sexual connection?
Unlawful Sexual Connection s128(3) CA61Person A has unlawful sexual connection with Person B if Person A has sexual connection with Person B - (i) without Person B’s consent to the connection; and(ii) without believing on reasonable grounds that Person B consents to the connection.
Explain ‘continuation’.
The definition of sexual connection included the continuation of such acts, capturing such situations where sexual activity is started consensually, but consent is later withdrawn.R v Kaitamaki - if after he has penetrated a woman, a man realises…
Explain indecent assault.
R v Leeson - an indecent assault is an assault…IndecentAn act that is indecent has sexual connotations and involves conduct directed at a person that is and affront to public moral values. R v Court - indecency involves conduct that right-thinking people…Assault s2 CA61
Explain consent.
Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.
Define penetration and how may it be proven?
Penetration and introduction have the same meaning.s2(1A) CA61 Introduction to the slightest degree is enough to effect a connection.Penetration may be proven by:• The complainant’s statement• Medical or forensic evidence• The accused’s admissions
Define rape.
Rape s128(2) CA61Person A rapes Person B if Person A has sexual connection with Person B effected by the penetration of Person B’s genitalia by Person A’s penis -(i) without Person B’s consent to the connection; and(ii) without believing on reasonable grounds that Person B consents to the connection.
Explain “Parts of the body”.
Connection can be completed by any part of the body, usually refers to the hands or fingers used to penetrate the victim’s genitalia or anus.
Explain ‘mouth or tongue’.
Normal meaning.
Explain ‘objects’.
Any object that can be held or manipulated by the other person e.g. Bottle or vibrator.
Explain an indecent act.
An act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values. R v Court - Indecency involves conduct that right-minded people…If such an act is done with the consent of the child/YP it is immaterial whether:- the offender does that act on the child/YP- the child/YP on the offender- the act is mutuals132(6)(b) / s134(6)(b) CA61 - doing an indecent act on a child/YP includes indecently assaulting the child/YP.
Explain intent
A person does something intentionally if they mean to do it; they desire a specific result and act with the aim or purpose of achieving it.R v MohanR v Waaka
Can a child give consent to sexual activity?
• Yes - the Court of Appeal held that it would only be in exceptional and rare circumstances that a child could give legal consent.• There is no statutory cut-off age below which a child is deemed incapable of consenting - it depends on the circumstances of the case.• R v Cox: Although we do not exclude the possibility that a child of ten or eleven may be able to give a full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare…
In practice what evidence should be adduced in support of a victim’s age?
The complainant’s birth certificate in conjunction with some independent evidence that identifies the complainant as the person named in the certificate.
Can a 16yo female be charged with having sexual intercourse with a 14yo male?
• Yes - where both parties are under 16 then both commit the offence, however if one party is 16 and the other party is under 16 then only the 16yo may be charged.• s134(5) CA61 - The young person in respect of whom an offence was committed against cannot be charged as a party if the offender was 16+ when the offence was committed.
What is the defence to s134 CA61 offences?
s134A it may prove a defence to a charge under s134 if the defendant proves that before the time of sexual activity:• they had taken reasonable steps to ascertain that the YP was at least 16yo; AND• at the time of the sexual activity they believed on reasonable grounds the YP was at least 16; AND • the young person consented.
If a male has sexual intercourse with his 18 year old home stay student, is there any offence?
No. The student falls under the definition of a DFM however she is 18+ so no offence is committed.s131A(1) CA61(c) if he or she is living with the other person as a member of the other person’s family, and the other person is not a person referred to in paragraph (a), but has -(i) power or authority over him or her; and(ii) a responsibility for, or significant role in, his or her care or upbringing.
What is the definition of a dependent family member?
s131A(1) CA61(1) For the purposes of section 131, one person is a dependent family member of another person—(a) if the other person has power or authority over him or her, and is—(i) his or her parent, step-parent, foster parent, guardian, uncle, or aunt; or(ii) a parent, step-parent, or foster parent of a person described in subparagraph (i); or(iii) a child of his or her parent or step-parent; or(iv) the spouse or de facto partner of a person described in subparagraph (i) or subparagraph (ii) or subparagraph (iii); or(b) if they are members of the same family, whanau, or other culturally recognised family group, and the other person—(i) is not a person referred to in paragraph (a); but(ii) has a responsibility for, or significant role in, his or her care or upbringing; or(c) if he or she is living with the other person as a member of the other person’s family, and the other person is not a person referred to in paragraph (a), but has—(i) power or authority over him or her; and(ii) a responsibility for, or significant role in, his or her care or upbringing.
What are the act, section, penalty and ingredients of Sexual Conduct with a DFM (1)?
s131(1) CA61 - 7 years.1 A person.2 Has sexual connection.3 With a dependent family member under the age of 18 years
Define aunt, uncle, foster parent, step parent & guardian.
s131A(2)aunt - in relation to a person, includes a half-sister of one of the person’s parentsuncle - in relation to a person, includes a half-brother of one of the person’s parentsfoster parent - includes a former foster parentstep-parent - includes a former step-parentguardian - (a) means guardian by virtue of the Guardianship Act 1968 or the CYPF Act 1989; and (b) includes a former guardian
When is sexual grooming complete?
s131B CA61 - Meeting YP following sexual grooming - 7 yearsThe offence is complete when the parties meet or the accused travels or makes arrangements to meet the complainant with the relevant intent.
Is it an offence for an adoptive parent to have sex with his 18yo daughter?
Yes. The correct charge would be under s130 for Incest. An adoptive parent is also considered to be a parent. Everyone over the age of 16 commit incest so both parties can be charged.Had the daughter been under the age of 18 the adoptive parent would also have been liable under s131 - sexual conduct with a DFM.
When is the offence of having exploitative sexual connection with a person with a significant sexual impairment complete?
s138(1) CA61 - Sexual exploitation of a person with a significant impairment - 10y (s138(2) - attempts - 10y)The offence is complete at the time of the act with the knowledge that the person has a significant impairment AND having obtained that person’s acquiescence, participation in or undertaking of the connection by taking advantage of their impairment.
What kind of threats are referred to under s129A?
The kinds of threat referred to in subsections (3) and (4)(a) are— (a) a threat that the person making the threat or some other person will commit an offence that— (i) is punishable by imprisonment; but (ii) does not involve the actual or threatened application of force to any person; and (b) a threat that the person making the threat or some other person will make an accusation or disclosure (whether true or false) about misconduct by any person (whether living or dead) that is likely to damage seriously the reputation of the person against or about whom the accusation or disclosure is made; and (c) a threat that the person making the threat will make improper use, to the detriment of the person consenting, of a power or authority arising out of— (i) an occupational or vocational position held by the person making the threat; or (ii) a commercial relationship existing between the person making the threat and the person consenting.
When can a previous consistent statement be admitted?
s35 Evidence Act 2006 provides for admissibility of previous consistent statements:(1) Is NOT admissible unless (2) or (3) applies.(2) IS admissible when necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.(3) IS admissible if - (a) circumstances relating to the statement provide reasonable assurance it is reliable; and(b) it provides the Court with information the witness is unable to recall.
When must a transcript be provided to defence?
As soon as practicable after the defendant has pleaded not guilty. (At least 7 days prior to the hearing???)
In what other ways can a witness give evidence?
- While in the courtroom but unable to see the Defendant or some other specified person.- From an appropriate place outside the courtroom, either in NZ or elsewhere, via CCTV- By a video record made before the hearing (DVD) s103 & 105 form basis of this alternative
Discuss the provisions regarding the sexual experience of complainants.
s44 EA06 - No evidence can be put to the Victim regarding previous sexual history with any person other than the defendant except with the permission of the judge.
In what circumstances can the judge ask the witness to state the precise particulars of their address?
s87 EA06 - if the judge determines that it is directly relevant to the facts in issue and that to exclude it would be contrary to the interests of justice.
Define s44(1) & (2) of the Evidence Act 2006.
s44 Evidence Act 2006(1) In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the judge.(2) In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.
Who do ASA guidelines apply to?
All cases where the victim of the alleged offending is 17+ at the time of making the complaint.
What are the two things that you must do at the conclusion of a child forensic interview?
• Review the impact of the information disclosed during the interview• Update CYFS on information disclosed and discuss any care and protection issues• Complete the certificate of video record of interview
What do we need to achieve in process point 4 the preliminary interview?
• Determine what further investigative action points are necessary• Determine whether an offence may have been comitted• Determine whether the Victim wishes to make a formal complaint.
What is necessary to prove liability in cases of failing to protect a child or a vulnerable adult and who can be held liable?
s195A CA61• Mens rea - KNOWS the victim is at risk of death, GBH or sexual assault as a result of the unlawful acts or omissions of another person; AND• Actus reus FAILS to take reasonable steps to protect the victim from that risk.Liable persons:• 18+• member of the same household as the victim• staff member at a hospital / institution / residence where the victim resides
What are the 3 types of ASA complaints?
• Acute (within 7 days)• Non-acute (7days to 6 months)• Historic (6 months +)
Name 3 circumstances where police would remove a child from a household.
- it is not safe to leave them there; or- you believe on reasonable grounds that if left they will suffer, or likely suffer ill treatment, deprivation, abuse or harm; AND- there is no other practical means of ensuring their safety
What should you explain to a Victim before attending a medical exam?
- that the exam will be conducted by a forensic medical practitioner specially trained in examine victims of sexual assault- the benefits of the exam including the potential benefit to their physical sexual and mental health- how the exam can help police obtain evidence to apprehend the offender- the expected time frame for the exam and possible outcomes
What are three areas to consider in determining the seriousness of physical abuse and whether it meets the threshold for referral as a CPP case?
- the action of the abuse- the injury inflicted- the circumstances
Before attending a medical exam what should you remind the victim not to do?
- no eating or drinking- no going to the toilet (if necessary, use a toxicology kit to capture urine)- no washing or showering- no washing of hands or biting fingernails
What constitutes serious child abuse and must follow CPP protocols?
- sexual abuse- serious physical abuse- serious wilful neglect- serious family violence where the child is a witness- allegations against CYFS caregivers that involve serious child abuse- allegations against employees of the Police or CYFS that involve serious child abuse
List four Police responsibilities to Victims and their rights.
- All obligations under the Victims’ Rights Act 2002 must be met and all victim contacts must be recorded.- Victims must be given information about the progress of their investigation within 21 days- Victims must be kept updated and informed of the progress of their investigation, including no further avenues of enquiry or the reason for charges not being filed.- As soon as the offender is arrested and charged, Police must determine whether it is a s29 offence. If so, the must be informed of their right to register on the VNR- Victims must be informed of the outcome of the case and the case closure. Ensure any property belonging to the Victim is returned promptly.
Describe how your conduct should be when dealing with the Victim of a sexual assault.
C A L M T E A- Conduct your dealings in a sensitive and concerned manner.- Accept they are telling the truth until/unless there is evidence to prove the contrary- Listen to what they tell you, giving them an opportunity to tell their account in their words, even just to vent their feelings- Medical attention - establish if they require medical attention- Treat them courteously - Explain the process you are following and why you need to follow that process and ask certain questions- Advise them of local counselling services available
What are the section, act, penalty and ingredients of Sexual Violation by Rape?
s128(1)(a) CA61 20y - Sexual Violation by Rape• a person• rapes• another person
What are the section, act, penalty and ingredients of Sexual Violation by Unlawful Sexual Connection?
s128(1)(b) CA61 20y - Sexual Violation by Unlawful Sexual Connection• a person• has unlawful sexual connection• with another person
What are the section, act, penalty and ingredients of Attempted Sexual Violation?
s129(1) CA61 10y - Attempted Sexual Violation• a person• attempts to commit• sexual violation
What are the section, act, penalty and ingredients of Assault with intent to commit Sexual Violation?
s129(2) CA61 10y - Assault with intent to commit Sexual Violation• a person• assaults another person• with intent to commit sexual violation• of the other person
What are the section, act, penalty and ingredients of Sexual Connection with a Child?
s132(1) CA61 14y - Sexual Connection with a Child• everyone• has sexual connection• with a child
What are the section, act, penalty and ingredients of Sexual Connection with a Young Person?
s134(1) CA61 10y - Sexual Connection with a Young Person• everyone• has sexual connection• with a young person
What are the section, act, penalty and ingredients of Sexual Connection with a Dependent Family Member?
s131(1) CA61 7y - Sexual Connection with a Dependent Family Member• everyone• has sexual connection• with a dependent family member under the age of 18 years
What are the section, act, penalty and ingredients of Indecent Assault?
s135 CA61 7y - Indecent Assault• a person• indecently assaults• another person
What are the section, act, penalty and ingredients of Indecent Act with a Child?
s132(3) CA61 10y - Indecent Act with a Child• everyone• does an indecent act• on a child
What are the section, act, penalty and ingredients of Indecent Act with a Young Person?
s134(3) CA61 7y - Indecent Act with a Young Person• everyone• does an indecent act• on a young person
