General Questions 3 Flashcards
What three things must Crown prove in relation to an Indecent Assault?
- The defendant intentionally assaulted the complainant.
- The circumstances accompanying the assault were indecent.
- The defendant intended the conduct that a reasonable person would find indecent.
When is the offence of sexual exploitation of a person with a significant impairment complete?
For the purposes of subsections (1) and (2) a person has exploitative sexual connection with a person with a significant impairment (the impaired person) if he or she -
(a) Has sexual connection with the impaired person KNOWING that the impaired person is a person with a significant impairment.
(b) Has obtained the impaired person acquaintance in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment.
When is the offence of sexual grooming complete?
The offence is complete when the parties meet, or the accused travels or makes arrangements to meet the complainant with the relevant intent. To be intentional the meeting need only be “purposely arranged”. This section is framed in gender-neutral term.
Explain section 195A CA 1961 in relation to what is necessary to prove criminal liability for failing to protect a child
In some situations where it is known a child (or vulnerable adult) is at risk of harm but where no action is taken.
Applies to: Members of the same household as the Victim,
People who are staff members of any hospital, institution or residence where the victim resides.
Criminal Liability will arise if such a person has frequent contact with a child (or vulnerable adult) and:
- Knows (mens rea) the Victim is at result of death, GBH or sexual assault as a result of the acts or omissions of another.
- Fails (actus reus) to take reasonable steps to protect the Victim from that risk.
Explain sec 87 of the Evidence Act 2006 in relation to the Victim’s address
Sec 87 of EA protects a witness from having to state their address and having questions put to them about that information. This includes not only the name and number of the street but also the name of the town or community the witnessed lived.
However these details may be disclosed where the judge determines that they are directly relevant to the facts in issue and that to exclude them would be contrary to the interest of justice.
Explain sec 129A (5) CA in relation to sexual conduct with consent induced by certain threat.
The kind of threats referred to in (3) and (4)(a) are:
(a) A threat that the person making the threat or some other person will commit an offence that is punishable by imprisonment, but 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 the person making the threat will make improper use of the detriment of the person consenting or a power or authority arising out of:
(a) an occupational or vocational position held by the person making the threat or
(b) commercial relationship existing between the person making the threat and the person consenting.
R V Leeson
The definition of indecent assault… is an assault accompanied with circumstances of indecency
Under sec 131A CA, what is the definition of a dependent family member?
(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 (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 (i) or (ii) or (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 (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
Discuss section 128A CA in relation to invalid consent
- A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.
- A person does not consent to sexual activity if he or she allows the activity because of—
(a) force applied to him or her or some other person; or
(b) the threat (express or implied) of the application of force to him or her or some other person; or
(c) the fear of the application of force to him or her or some other person. - A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.
- A person does not consent to sexual activity 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.
- A person does not consent to sexual activity 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.
- One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.
- A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.
Section 195A CA 1961 - Failure to protect a child or vulnerable adult. What is required to be proved?
Where the person “at risk” is a child it will need to be shown that they were:
- Under the age of 18 at the time of the offence, and
- That the defendant was over the age of 18, and,
- The defendant, by virtue of being a member of the same household as the victim or a staff member in a hospital or institution or residence where the victim resides had “frequent contact” with them, and
- The defendant had knowledge of the risk of harm to the child
Frequent Contact
The requirement of frequent contact is one, without which the prosecution cannot succeed. Whether the contact between the defendant and the complainant can be regarded as sufficiently “frequent” to ground liability under this section is a matter of fact for the jury
