Incest/Dependant Family Member

Question 1

** EXAM ** - Incest - Legislation

Answer 1

Incest 
Section 130 (2) CA 1961 - 10 years imprisonment 

everyone of or over the age of 16 who
commits incest

Question 2

** EXAM ** - When is sexual connection incest?

Answer 2

Section 130 (1)
Sexual connection is incest if—
(a) it is between 2 people whose relationship is that of parent and child, siblings, half-siblings, or grandparent and grandchild; and
(b) the person charged knows of the relationship.

Question 3

Parent/Child Relationships

Answer 3

Where a child has been adopted, the birth parents remain ‘parents’ for the purpose of the offence of incest, and the adoptive parents are also considered ‘parents’.

If only one parent adopts the child and the spouse consents to the adoption the consenting spouse is not an adoptive parent so cannot be charged with incest.

Question 4

Step Relationships

Answer 4

A step-parent and step-child are not “parent and child” under section 130. Sexual intercourse between a step-parent and step-child may instead come under section 131 (Sexual conduct with dependent family member)

Question 5

** EXAM ** - Knowledge of relationship / liability

Answer 5

Onus is on the Crown to prove the person charged knew their relationship before or at the time of the sexual connection.

Each party of or over 16 at the time is liable as principal offender.

Question 6

** EXAM ** - Sexual connection with dependant family member - legislation

Answer 6

Sexual connection with dependant family member
Section 131 (1) - CA 1961 - 7 years imprisonment 

everyone who
has sexual connection
with a dependant family member
under the age of 18 years

Question 7

** EXAM ** - Attempted sexual connection with dependant family member - legislation

Answer 7

Attempted sexual connection with dependant family member
Section 131 (2) - CA 1961 - 7 years imprisonment

everyone who
attempts to have sexual connection
with a dependant family member
under the age of 18 years

Question 8

** EXAM ** - Indecent act with dependant family member - legislation

Answer 8

Indecent act with dependant family member
Section 131 (3) - CA 1961 - 3 years imprisonment 

everyone who
does an indecent act
on a dependant family member
under the age of 18 years

Question 9

** EXAM ** - Dependant family member defined

Answer 9

Section 131A (1) - CA 1961

(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), (ii) or (iii)

Question 10

** EXAM ** - Dependent family member further defined

Answer 10

Section 131A (1b) and (1c) - CA 1961

(1b) - member of the same family/whanau or other culturally recognised family group AND
- has responsibility or significant role in his or her care or upbringing.

(1c) - living with the other person as a member of their family AND
- has power or authority over him or her AND
- has responsibility or significant role in his or her care or upbringing.

Question 11

Family term definitions

Answer 11

aunt - includes half sister of one of the persons parents

uncle - includes half brother of one of the persons parents

foster parent - includes a former foster parent

step parent - includes former step parent

Question 12

Guardian defined

Answer 12

(a) means guardian by virtue of the Guardianship Act 1968 or the OT Act 1989; and
(b) includes a former guardian

Question 13

What do police need to prove?

Answer 13

• offender was either parent, step parent, foster parent etc
• had power or authority over dependant person