MCQ/Short Answers

Question 1

What Must be Proved in all cases of violation?

Answer 1

• Intentional act by the offender involving sexual connection with the complainant.
• Complainant did not consent to the sexual act
• The offender did not believe the complainant was consenting
  OR
• if the offender did believe the complainant was consenting, the grounds for such a belief were not reasonable.

Question 2

What must an investigation into a violation prove:

Answer 2

• The defendant knew they did not have the victims consent but acted anyway (offenders mens rea)
• The defendants grounds for believing the victim consented were unreasonable (R vGutuama)

Question 3

Is there a legal defence if a husband rapes his spouse?

Answer 3

S128(4) Makes it clear that a spouse who violates his spouse has no legal defense due to the fact they are married.

Question 4

Discuss sentencing for S128 offences?

Answer 4

20 years

S128B
(2) a person convicted of a sexual violation must be sentenced to imprisonment unless having regards to the matters in Subsection 3, the courts thinks that the person should not be sentenced to imprisonment
(3)
The matters are
a) the particular circumstances of the person convicted
b) the particular circumstances of the offence including the nature of the conduct constituting it

Question 5

What level of penetration is required to prove the offence?

Answer 5

CA S2 - (1A) For the purpose of sexual connection, introduction to the slightest degree is enough to effect a connection.

Penetration must be proved but the extent of penetration is not relevant no matter how slight or fleeting.

Question 6

Is penetration of the anus rape?

Answer 6

Anus is not included within the definition of genitalia and therefore non consensual penile penetration of the anus is not rape.

Appropriate charge is violation by unlawful sexual connection.

Question 7

Discuss connection between the mouth or tongue and genitals

Answer 7

In case of oral sexual connection it is not necessary for penetration any touching is sufficient.

Question 8

What are genuine medical purposes?

Answer 8

In some medical procedures involves penetration of a patient by a doctor. Provided this is done for genuine medical purposes this is excluded from the definition of sexual connection
However a doctor who penetrates a patient on the pretense of medical necessity when it is actually for sexual gratification it may amount to sexual connection.

Question 9

Define continuation?

Answer 9

Definition of sexual connection includes continuation of such acts capturing where sexual activity is started consensually but later withdrawn.

There is an obligation on a person to stop activity at the point he realizes the other person is, or may be no longer willing. Failure to do so may render a previously consensual act unlawful.

Question 10

Can only biological males commit rape?

Answer 10

The definition of rape is where a penis penetrates the genetalia of the complainant. Given the wide definition of penis any person with a penis is capable of committing the offence of rape regardless of biological gender.

Question 11

What is discussed in S127 CA61?

Answer 11

There is no presumption of law that a person is incapable of sexual connection because of his or her age.

This provision means that any person of any age is capable in a legal sense of being involved in sexual connection.

Therefore it would not be a defence to a sex related charge to say that a party was too old or too young to have sexual connection.

Question 12

What must the crown prove in relation to consent?

Answer 12

The complainant did not consent to the act (subjective test) and
The offender did not believe the complainant was consenting (subjective test)
OR if he did believe she was consenting, the grounds for such a belief werre not reasonable (objective test)

Question 13

How is consent conveyed?

Answer 13

R v COOK
Held that to be effective, consent must be “real genuine or true consent and that it may be conveyed by words conduct or both”

Question 14

Can a person be reckless to having consent?

Answer 14

Recklessness as to whether the complainant is consenting or not is not consistent with having a reasonable belief in consent.

Question 15

When is consent relevant?

Answer 15

AT THE TIME OF THE ACT TAKING PLACE

R v Adams Found that the material time when consent and belief in consent is to be considered is at the time the act actually took place.
The complainants behavior and attitude before or after the act itself may be relevant to that issue, but is not decisive.

The real point is whether there was true consent or a reasonably based belief in consent at the time the act took place.

Question 16

What matters do not constitute consent?

Answer 16

S128A

A person does not consent:

1) Because they do not protest or offer physical resistance to the activity.

2) If he/she allows the activity because of
-Force applied to them or another
-The threat of application of force to them or another
-Fear of application of force to them or another

3) While they are asleep or unconscious

4) So affected by alcohol or drugs that they cannot consent or refuse to consent

5) While they are affected by an intellectual mental or physical condition or impairment of such a degree or nature that they cannot consent or refuse to consent.

6) If they allow the activity if they are mistaken as to who the person is

7) If they allow the act because they are mistaken about the nature and its quality.

8) This section does not limit which a person does not consent.

9) For the purposes of this section
-Allows includes acquiesces in ,submits to ,participates in and undertakes sexual activity. in relation to a person means :
- Sexual connection with the person
- The doing on the person of an indecent act which without the persons consent would be an indecent assault.

Question 17

Discuss Lack of protest or resistance

Answer 17

S128A (1)
This does not mean a person is consenting even if the lack of consent has not been communicated. What is relevant is the complainants state of mind.
The fact the complainants lack of consent not being communicated may be relevant to whether the defendant believed she was consenting. And whether the belief was reasonable.

Question 18

Discuss Force

Answer 18

S128A (2)(a)
Allowing sex does not amount to consent if force has been used to obtain compliance. Although the act does not specify the degree of force necessary, force that is intended to cause bodily harm would normally negate a claim that consent had been given.

Question 19

Discuss threats to gain consent

Answer 19

S128A (2)(b)
The threat must be a threat to use force against victim or other person, the circumstances will establish that the threat was sufficient to negate genuine consent.

Question 20

Discuss consent by fear

Answer 20

S128A (2)(c)
The victim must be afraid that force will be used against them or another if force was not actually used or threatened.

R v Koroheke

Question 21

Discuss asleep or unconscious

Answer 21

S128A (3)
States in absolute terms that if the complainant is asleep or unconscious that activity is non consensual.

This is based on the fact that the relevant time for consent is at the time of the activity.
Therefore even prior agreement to sexual activity while the complainant is asleep or unconscious does not constitute consent.

Question 22

Discuss Affected by alcohol or drugs

Answer 22

S128A (4)
Consent is not simply invalid because a person is intoxicated, the question is whether they were affected to such an extent that they were incapable of understanding the situation and giving rational or reasoned consent.

In R v Isherwood the complainant submitted to sex with two men who had spiked her drink. As a result she felt unable to resist.

Court held that proof that the influence of drugs has a disinhibiting effect on the mind of the complainant is not necessarily incompatible with consent. It is all a question of degree.

Court reaffirmed that if consent is to be valid the complainant has to be able to understand the situation and be capable of making their mind when agreeing to sexual acts.

It may be possible for the crown to prove a complainant was not consenting even though she may have no recollection of the events herself.

Question 23

Discuss Intellectual mental or physical impairment

Answer 23

S128A (5)
Where the validity of the consent is in question due to impairment, the issue is whether the impairment is so severe it deprives the complainant of the capacity to give or withhold consent.

Where threshold for violation not met but vulnerability of complainant taken advantage of charge under S138 exploitation of a person with significant impairment.

Question 24

Discuss mistaken identity

Answer 24

128A(6)
Consent is nullified if it is based on the mistaken id of a person
Eg a women is may have consented to be a surrogate mother for a couple and is expective a visit. But someone else comes and takes advantage of her mistaking his identity.
Note that the mistake is one made by the person submitting to the connection not a mistake by the defendant.
R v Murphy defendant got into his bed beside a drunk sleeping woman who had consensual sex with another male. Murphy initiated and the women participated willingly believing it was the other male. Murphy convicted of rape.

Question 25

Discuss mistaken as to nature and quality of act

Answer 25

Consent is also nullified when the complainant was unaware of the true nature of the act to which they were agreeing. Such mistakes are limited to the physical character of the connection. Means that agree to act other than intercourse but intercourse in fact takes place. They cannot be have said to have given consent Eg consent to vaginal and anus penetrated. Mistake is the one made by the person submitting to the sexual connection not the defendant.

Question 26

Discuss consent given by fraudulent means apart from identity or nature of the act

Answer 26

ANY OTHER FRAUDULENT REPRESENTATION that makes the complainant become mistaken about something other than the offenders identity or nature and quality of the act will not affect that consent was given. e.g Lying about extravagant wealth or status, or promise of money or gifts not delivered.

Question 27

Discuss Attempted Sexual violation

Answer 27

S129(1) CA61 10yrs S72 CA Attempts def Attempts sexual violation

Question 28

What distinguishes attempted violation and assault with intent to commit violation?

Answer 28

An attempt to commit sexual violation does not necessarily involve a assault An assault with intent to commit violation may not be sufficiently proximate to the full offence to constitute an attempt.

Question 29

Discuss Attempts

Answer 29

Attempts SA72 CA61 1) Having intent to commit an offence does or omits an act for the purpose of accomplishing its object is guilty of an attempt to commit the offence intended whether or not in the circumstances it was possible to commit the offence. 2) Question of act is not only a preparation or an attempt is a question of law 3) Act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or approximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit the act.

Question 30

What must the INTENT must the crown prove in cases of attempted violations?

Answer 30

Defendant intended to commit the full act of sexual violation and acted as he did for the purpose of achieving that aim.

Question 31

What must the crown prove for the offence of attempted violation?

Answer 31

Intended to have sexual connection with the complainant. Complainant did not consent to the intended sexual connection Defendant did not believe on reasonable grounds that the complainant was consenting.

Question 32

What stage must the defendant be at to be guilty of an attempt?

Answer 32

To be guilty of an attempt the defendant must have passed the stage of preparation and started a process intended to lead to the commission of the offence. In r v harpur the defendant sent several texts which he detailed acts he wanted to perform on a 4yo niece. He arranged for the niece to be brought to him for that purpose but was part of a sting operation. Held sufficiently proximate for attempts.

Question 33

How does the court judge that an act is sufficiently proximate?

Answer 33

Court will analyze defendants conduct. And cumulatively assess circumstances and behavior and steps taken to infer if defendant had intended to commit the full offence and had started to do so even if he was several steps removed from ultimate act. Must be common sense that the defendant was gone beyond mere preparation to actually take steps to committing the act.

Question 34

What acts may constitute an attempt?

Answer 34

- Lying in wait searching or following the contemplated victim - Enticing the victim to go to the scene of the crime - Reconnoitering the scene of the contemplated offence. - Unlawful entry of a structure in which it is contemplated that the offence will be committed - Possession or collection of materials to be used during the offence - Soliciting an innocent agent to engage in conduct constituting an offence.

Question 35

What must be proved with cases of Assault with intent to commit violation?

Answer 35

At the time of the assault: Intended to have sexual connection with the complainant The complainant did not consent to the sexual connection And the defendant did not believe on reasonable ground that the complainant was consenting.

Question 36

What was discussed in Cox V R around a childs ability to give consent?

Answer 36

Although we do not exclude the possibility that a child ten or 11 may be able to give a full voluntary free and informed consent the circumstances would be exceptional if not rare.

Question 37

What was discussed in Cox V R around a reasonable belief in a child giving consent?

Answer 37

save in exceptional and rare circumstances even where she indicates an agreement to the act, no reasonable adult would have grounds for believing a 10 or 11 yo would have the experience or maturity to understand the significance of the act.

Question 38

What in practice should be presented as proof of age evidence?

Answer 38

In practice this will be producing the birth certificate and independent evidence that identifies the complainant as the person in the certificate. Ideally that independent evidence will be a parent. Could also being the complainant saying what year they started school, when they habitually celebrate their birthday

Question 39

What was held in R v Clancy

Answer 39

That in a case where the birth certificate was not produced that the mother gave evidence to the complainants date of birth was sufficient to prove age.

Question 40

What is discussed in S132(4)

Answer 40

That it is no defence to a charge under this section if the offender believed that the complainant was 12 or older

Question 41

Can a person be convicted of a charge under S134 if they are married?

Answer 41

NO PERSON CAN BE CONVICTED OF A CHARGE UNDER THIS SECTION IF HE OR SHE WAS MARRIED TO THE YOUNG PERSON AT THE TIME OF THE SEXUAL CONNECTION OR ACT CONCERNED

Question 42

Can a young person be charged as a party if they are consenting?

Answer 42

THE YOUNG PERSON IN RESPECT OF WHOM AN OFFENCE AGAINST THIS SECTION WAS COMMITTED CANNOT BE CHARGED AS A PARTY TO THE OFFENCE IF THE PERSON WHO COMMITTED THE OFFENCE WAS OF OR OVER THE AGE OF 16 YEARS WHEN THE OFFENCE WAS COMMITTED

Question 43

Can you charge for a act done with a complainant under the age of 12 under S134

Answer 43

Yes as wording is under the age of 16, so include situations when not certain of age around that under 12 threshold for a charge under S132.

Question 44

What is the defence for a charge under S134?

Answer 44

S134A (1) it is a defence to a charge under 134 that a) before the time of the act concerned he has taken reasonable steps to find out whether the young person concerned was of or over the age of 16 AND b) at the time of the act concerned he believed on reasonable grounds that the young person was over the age of 16 AND c) The young person consented. Defendant must prove this and satisfy the court that they took all reasonable steps required of them in the circumstances the wider the age and maturity gap the harder it will be to establish this defence.

Question 45

What is not a defence to a charge under S134

Answer 45

S134a 2) a) Not a defence that the young person consented b) not as defence that the person charged believed the yp was over 16. To get a defence for this charge MUST take reasonable steps to ascertain the age along with the above.

Question 46

What must be proved in cases of indecent assault?

Answer 46

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. IF THE ISSUE OF CONSENT IS RAISED THE PROSECUTION MUST THEN PROVE BEYOND A REASONABLE DOUBT A FURTHER TWO ELEMENTS: The complainant did not consent to the assault and The defendant did not honestly believe the complainant was consenting

Question 47

What is indecent intent?

Answer 47

Indecent assault cannot be committed accidentally and it must be proved the defendant intended to act indecently. eg pushes woman and rips top exposing her, no indecent intent, but guilty of assault.

Question 48

What is the difference in belief in consent as a defence to a charge of indecent assault S135 compared to a S128 violation?

Answer 48

A genuine belief that the complainant was consenting is a defence to a charge under S135 R v Norris, even if the grounds were unreasonable. Whereas is a violation if the grounds for belief are unreasonable there is no defence.

Question 49

What is referred to in S134(5) Can a person under the age of 16 be charged with an offence under this section?

Answer 49

A YP under the age of 16 cannot be charged as a party to this offence if the person who committed the offence is 16 or older. If both parties are under 16 they can be charged as they both commit the offence.

Question 50

Explain the offence of Sexual conduct with consent induced by threats

Answer 50

S129A 14yrs 1) Has Sexual connection with another person knowing that the other person has been induced to consent to the connection by threat 5yrs 2) Does an indecent act on another person knowing that the other person has been induced to consent to the connection by threat

Question 51

What kind of threats are sufficient for the offence of Sexual conduct with consent induced by threats?

Answer 51

(5) a threat that the person making the threat or some other person will commit an offence that is i) Punishable by imprisonment ii) Does not involve the actual or threatened application of force to any person and b) a threat that a person will make a accusation or disclosure about a person that is likely to damage seriously the reputation of any person whom the disclosure is made. d) a threat that the person making the thereat will make improper use to the detriment of the person consenting of a power or authority arising out of: a occupational position held by the person making the threat a commercial relationship existing between the person making the threat and the one consenting

Question 52

What is the section and penalty for incest?

Answer 52

S130 people of and over the age of 16 are liable to 10 years imprisonment

Question 53

What is incest?

Answer 53

Sexual Connection is incest if It is between 2 people whose relationship is that of parent and child siblings halfsiblings or grandparent and grandchild And the person charged knows the relationship Consent is no defence to a charge under this section Where a child is adopted the birth parents remain parents for the purpose of incest as well as the adoptive parents. A step parent is not a parent and child under S130 Knowledge of relationship is essential for this charge and person charged must know the relationship at the time of connection.

Question 54

What is S131? explain the offences

Answer 54

SEXUAL CONDUCT WITH A DEPENDANT FAMILY MEMBER S131 - Has sexual conduct with a dependent family member under the age of 18 - 7yrs - Attempts to have sexual conduct with a dependent family member under the age of 18 7yrs - Indecent act with a dependent family member under the age of 18 3yrs - Dependent family member cannot be charged as a party - Not a defence to this charge if the dependent family member consents.

Question 55

Define a dependant family member?

Answer 55

S131A Dependant family member defined 1) for purpose of 131 a person is a dependant family member if a) The other person has power or authority over him or her and is - a parent step parent or forster parent of a person described in 1 or - The spouse or defacto partner of a person described in 1 b) If they are members of the same family or family group, or cultural family group - And the other person is not a person referred to paragraph a BUT - 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 others family and the other person is not a person referred to in a) but - has power or authority over him or her and - A responsibility for or significant role in his or her care or upbringing. Power or authority Wide range of domestic relationships but broad enough to cover all complainants who are vulnerable. Police need to prove that the offender in addition to one of the roles set out (parent,stepparent etc) had power or authority.

Question 56

What are the actions that must be taken by the defendant to charge for meeting a young person following grooming?

Answer 56

Intentionally meets the YP Travels with the intention of meeting the YP Arranges for or persuades the YP to travel with the intention of meeting him/her

Question 57

What defence is available to a grooming charge?

Answer 57

S131B (2) a) before the time he or she took the action concerned, he or she took reasonable steps to find out whether the young person was of or over 16 AND b) at the time he or she took the action, he or she believed on reasonable grounds that the YP was of or over 16.

Question 58

When is the offence of grooming complete?

Answer 58

when the parties meet Travels or makes arrangements with the relevant intent. To be intentional only need to be purposely arranged

Question 59

Can a Constable act as a young person?

Answer 59

S131B (1A) A constable can fictitiously be a young person and if the person takes any of the actions described with the relevant intent and believes the constable to be a young person it satisfies the offence.

Question 60

What is S138? explain the offences

Answer 60

SEXUAL EXPLOITATION OF A PERSON WITH SIGNIFICANT IMPAIRMENT 1) HAS EXPLOITIVE SEXUAL CONNECTION WITH PERSON WITH A SIGNIFICANT IMPAIRMENT 10YRS 2) ATTEMPTS TO HAVE EXPLOITIVE SEXUAL CONNECTION WITH PERSON WITH A SIGNIFICANT IMPAIRMENT 10YRS 4) EXPLOITIVILY DOES AN INDECENT ACT ON PERSON WITH A SIGNIFICANT IMPAIRMENT - 5YRS

Question 61

What is exploitive sexual connection and expoitively does an indecent act?

Answer 61

Defined S138 (3) & (5) For the purpose of 1 and 2 a person has exploitive sexual connection if Has sexual connection with a impaired person knowing the impaired person is a person with significant impairment. Has obtained the impaired persons acquiescence in submission to, participation in or undertaking of the connection by taking advantage of the impairment. For the purpose of 4 a person does an exploitive act if: Does an indecent act on the impaired person knowing the impaired person is a person with significant impairment. Has obtained the impaired persons acquiescence, submission to, participation in or undertaking of the act by taking advantage of the impairment.

Question 62

What is a significant impairment under S138?

Answer 62

Significant impairment is an intellectual, mental or physical condition or impairment that affects a person to such an extent that it significantly impairs the persons capacity: - To understand the nature of sexual conduct - To understand the nature of decisions about sexual conduct - To foresee the consequences of decisions about sexual conduct - To communicate decisions about sexual conduct

Question 63

What is Section 142A?

Answer 63

Compelling indecent act with animal 14 yrs Compels another person by actual or threatened application of force to that person to perform or submit to or acquiesce in any act of indecency with an animal whether or not involving penetration.

Question 64

What is Section 143?

Answer 64

S143 - Beastiality 7yrs Commits beastiality Offence is complete upon penetration

Question 65

What is Section 144?

Answer 65

S144 indecency with animals 3yrs Commits any act of indecency with an animal

Question 66

Outline the offences of S144A Sexual conduct with Children / YP outside NZ

Answer 66

Everyone commits an offence who being a NZ citizen or resident in NZ - Does connection, attempted connection, indecent act outside nz with or on a child under 12 Does connection , attempted connection, indecent act outside nz with or on a young person Under 16 Does an act that would be an offence against the prostitution reform act (Under 18 prostitute) Liable to penalty to which he or she would be liable if convicted of equivalent offence.

Question 67

Who can file charges for S144A offences?

Answer 67

No charging document shall be filed without the consent of the attorney general. But Police may arrest a person or seek a warrant for the person and they may be remanded or bailed in spite of the consent of the attorney general not been obtained, but no other proceedings will take place until that consent obtained. The attorney general shall make any inquiries as they seem fit.

Question 68

What is Section 144C?

Answer 68

Organizing or promoting child sex tours - 7yrs Makes or organizes travel arrangements for or on behalf of any other person with the intention of facilitating the commission of offence under 144A Transports any person to a place outside NZ with intention of facilitating commission of offence against 144a Prints or publishes information intended to promote conduct that would constitute offence under 144a. Arrangements includes Purchase or reservation of tickets and accommodation outside nz

Question 69

What is Section 216H?

Answer 69

Prohibition on making intimate visual recording 3 yrs Intentionally or recklessly makes intimate visual recording of another.

Question 70

What is required to prove an intimate visual recording offence?

Answer 70

Made recording without consent And intended or recklessly to make such a recording.

Question 71

What does S44 of the evidence act refer to ?

Answer 71

S44 evidence of experience of complainants in sexual cases Generally no evidence or questions can be put to the complainant about their sexual experience with any person other than the defendant. subject to the propensity rule, so requires permission of the judge

Question 72

When is a witness required to give their address?

Answer 72

S87 restricts a witness from having to state their address and having questions put to them about that information. this includes name of street and number and town. 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.

Question 73

When would a witness have to disclose their occupation?

Answer 73

S88 protects questions and evidence required to be given about a sexual cases witnesses occupation. Can be disclosed on application to the court and permission of the judge determining that they are directly relevant to the facts in issue and that to exclude them would be contrary to the interest of justice.

Question 74

Does a complainants evidence have to be corroborated?

Answer 74

S121 - Corroborative evidence The complainants evidence does not have to be corroborated, this is important in sexual cases where typically no corroboration Corroborate means to strengthen or support with other evidence, to make more certain.

Question 75

What are the advantages of Visual recorded evidence

Answer 75

Greater quality and quantity of information Minimizing trauma to the witness by simplifying process and having the video as evidence in chief Reducing contamination by the interviewer through the process of transposing it to a statement. Providing a valuable means for the witness to refresh their memory before proceedings

Question 76

What is veracity?

Answer 76

The disposition of a person to refrain from lying

Question 77

When are previous consistent statements admissable

Answer 77

generally only as rebuttal evidence

Question 78

What should you do if there is no specialist interviewer?

Answer 78

Generally should not record evidence by video unless trained IN exceptional circumstances a NCO can authorize a suitably competent investigator to conduct and record the interview.

Question 79

How does video recording of child interviews meet their needs?

Answer 79

Interview process is focused on the child and allows them to state clearly and freely what has happened. Can be used for basis of investigation and subsequent criminal prosecution or care and protection Avoids need to reinterview

Question 80

List the three ground on whjich a direction can be made under S103(3) of the evidence act in relation to giving evidence in an alternate way?

Answer 80

Direction may be made under the grounds of: age or maturity of witness physical, intellectual, phsycological or psychiatric impairment of the witness trauma suffered by the witness witnesses fear of intimidation linguistic or cultural background nature of the proceeding nature of the evidence they are to give relationship of the witness to the party in the proceeding abscence of the witness from NZ any other ground likely to promote the purpose of the act

Question 81

Discuss the requirement under reg 28 of the evidence regulations

Answer 81

REG 28 Prosecutor to give transcript to defence after defendant pleads not guilty: Prosecutor must ensure a typed transcript of a working copy is given to the defendant as soon as practicable after the defendant has pled not guilty the typed transcript is prepared by police the court may adjourn the hearing to allow further time for the defendant to consider the transcript if satisfied subclause 1 not complied with

Question 82

List three ways under S105 that a witness may give evidence

Answer 82

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 by a video record made before the hearing of the proceeding

Question 83

What is S59 of the Crimes Act

Answer 83

PARENTAL CONTROL -reaffirmed police have discretion to not prosecute complaints against parent of a child if not in public interest.

Question 84

What is S195 CA61

Answer 84

S195- Ill treatment or neglect of child or vulnerable adult Applies to people who have actual care or charge of the complainant and those who are staff members of institution/hospital Any of those specified caregivers who intentionally engages in conduct or omits to discharge or perform any legal duty which is likely to result in suffering injury, adverse effects to health or any mental disorder or disability to a child or vulnerable adult renders them liable to imprisonment not exceeding 10yrs For the purpose of this section and 195A a child is a person under 18

Question 85

What is S195A

Answer 85

195A Failure to protect child or vulnerable adult 10 yrs Every one is liable to imprisonment for a term not exceeding 10 years who, being a person described in subsection (2), has frequent contact with a child or vulnerable adult (the victim) and— (a) knows that the victim is at risk of death, grievous bodily harm, or sexual assault as the result of— (i) an unlawful act by another person; or (ii) an omission by another person to discharge or perform a legal duty if, in the circumstances, that omission is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies; and (b) fails to take reasonable steps to protect the victim from that risk. (2) The persons are— (a) a member of the same household as the victim; or (b) a person who is a staff member of any hospital, institution, or residence where the victim resides. (3) A person may not be charged with an offence under this section if he or she was under the age of 18 at the time of the act or omission. (4) For the purposes of this section,— (a) a person is to be regarded as a member of a particular household, even if he or she does not live in that household, if that person is so closely connected with the household that it is reasonable, in the circumstances, to regard him or her as a member of the household: (b) where the victim lives in different households at different times, the same household refers to the household in which the victim was living at the time of the act or omission giving rise to the risk of death, grievous bodily harm, or sexual assault. (5) In determining whether a person is so closely connected with a particular household as to be regarded as a member of that household, regard must be had to the frequency and duration of visits to the household and whether the person has a familial relationship with the victim and any other matters that may be relevant in the circumstances.

Question 86

Who does the offence of S195A apply to?

Answer 86

Members of the same household as the victim people who are staff members of any hospital institution or residence where the victim resides

Question 87

How does criminal liability arise for S195A?

Answer 87

Criminal liability arises if such person has frequent contact with a child and Knows (mens rea) the victim is at risk of death gbh or sexual assault as a result of the omissions Fails( actus rea) to take reasonable steps to protect that victim.

Question 88

What is required to be proved for an offence under S195A?

Answer 88

Child under 18 at time of offence Defendant over 18 Defendant by virtue of being member of household or staff at hospital had frequent contact The defendant had knowledge of the risk to the child

Question 89

Discuss frequent contact in terms of S195A?

Answer 89

Requirement of frequent contact is one without which the prosecution cannot succeed. If is sufficiently frequency is a matter of fact for the jury to determine

Question 90

What are the two priorities which are required to be balanced for ASA investigations?

Answer 90

Undertaking investigation as quickly as possibly Meeting complainants physical and emotional needs

Question 91

What things can you do to provide ASA victims a safe and secure environment

Answer 91

Conduct in sensitive manner Accept they are telling truth unless evidence to the contrary Listen to what the tell you giving opportunity to tell account Establish whether need medical attention Treat courteously Explain process and why Advise about counseling servicesW

Question 92

What is the 12 step ASA process

Answer 92

1 Initial action 2 Case referral 3 Providing specialist support 4 Preliminary interview 5Information feedback 6 Medical examination 7 Formal interview 8 Investigation and evidence assessment 9 Resolution options 10 Prosecution 11 Final actions and record keeping 12 Preventative opportunities

Question 93

List four things a victim of a ASA case should refrain from before medical

Answer 93

eating or drinking going to the toilet (capture urine if necessary and refrain from wiping) no washing or showering no washing of hands or biting fingernails

Question 94

List the points you would cover off with a victim to explain a medical forensic examination

Answer 94

That its conducted by a trained doctor who specializes in victims of sexual assault the benefits are that its therapeutic, and a physical check ofor their physical sexual and mental health the examination assists police in obtaining evidence to apprehend the offender They are considered at all steps and the doctor will only carry out what the victim wants how long it will take and outcomes of the exam. It is no cost. Advise their preference for gender of person carrying out the examination and try to achieve this.

Question 95

List the three areas to consider the seriousness of physical abuse to determine if a matter is CPP

Answer 95

the action of the abuse the injury inflicted the circumstances

Question 96

List four police responsibilities to victims under the VRA

Answer 96

All obligations must be met and victim contacts recorded victim must be given information about their investigation within 21 days victims must be kept updated and informed about the outcome of the investigation and reasons for no charges filed etc as soon as the offender is arrested and charged the victim must be informed of their rights to be on the VNR victims must be informed of the outcome of the cae and the case closure, and with all property returned.

Question 97

Define Child abuse

Answer 97

Child abuse is the harming (whether physically, emotionally or sexually), ill treatment abuse neglect or deprivation of any child or young person

Question 98

In relation to child abuse investigations what does 'child centered timeframes' mean

Answer 98

that timeframes are relevant to the childs age and cognitive development. The younger a child the more vulnerable they are and it requires a quicker response. eg for a 5yo a week is a long time for a event to be recounted with reliability, however a 16yo would have less difficulty recalling the same event weeks later

Question 99

what is meant by the term proceeds