Miscellaneous

Question 1

Rape

Answer 1

Non-consensual penetration of genitalia by penis

Question 2

Sexual Connection

Answer 2

Connection effected by the introduction into the genetlia or anus of one person, otherwise than for genuine medical purposes

• Body parts of another person
• Objects held/manipulated by another person
• Connection of the mouth or tongue of one person and a part of another persons genetalia or anus
• Continuation

Question 3

• Unlawful Sexual Connection *

Answer 3

If Person A has a sexual connection with Person B:

• Without Person B’s consent
• without believing on reasonable grounds that Person B was consenting to the connection

Question 4

Penetration

Answer 4

The extent of penetration is not relevant, any degree of penetration is sufficient.

Therefore if a part of the offenders body or an object is held or manipulated between he complainants labia to the slightest degree, it will constitute penetration for the purpose of sexual violation.

Question 5

Intent

Answer 5

Doing a ‘Deliberate Act’ to get a ‘Specific Outcome’

Question 6

Genitalia

Answer 6

External organs of reproduction - literally ‘Organs of generation’. Includes penis and testicles of a male and vagina and vulva of a female. Does not include pubic hair or breasts.

Includes transgender surgically constructed/reconstructed genitalia.

Question 7

Continuation

Answer 7

Sexual activity commenced consensually but consent is later withdrawn and the act continues

Question 8

• Indecent Act *

Answer 8

An act accompanied by circumstances of indecency.

An act is indecent when it has sexual connotations and involves conduct directed at a person that offends public moral values.

Where the act is non-consensual or where a child’s consent is not legally valid, offender has committed indecent assault.

Question 9

Attempts

Answer 9

• Intended to commit the offence

- Take a real and substantial step towards achieving that aim

Question 10

• Incest *

Answer 10

Consent is not a defence to the charge as both parties need to be consenting.

If a child is adopted legally by one parent, the other parent cannot be charged although they are still liable to s131. Step relationships do not fall under Incest.

Each party over 16 years of age is liable as a principal offender.

Question 11

Significant Impairment

Answer 11

Intellectual, mental, physical condition or impairment that affects a person to such an extent that it significantly impairs persons capacity:

• to understand the nature of the sexual conduct
• to understand the nature of decisions of sexual conduct
• to forsee the consequences of decisions of sexual conduct
• to communicate decisions of sexual conduct

Question 12

• Dependant Family Member *

Answer 12

A person is a dependant family member of another if the other person has power or authority over and is:

• Parents, step-parents, foster parents, guardian, uncles and aunts.
• Grandparents, step-grandparents, foster grandparents
• Siblings
• Spouse, or de-facto partner of anyone mentioned above
• A member of the same family, whanau, or other culturally recognised family group and has a responsibility for, or a significant role ins or her care or upbringing
• Guardian includes by virtue the Guardianship Act 1968 or the CYFS Act 1989, and former guardians
• Anyone else who has a responsibility for, or significant role in his or her care or upbringing

Question 13

• Consent *

Answer 13

A conscious and voluntary agreement to something desired or proposed by another. Consent is relevant at the time of the act.

May be given reluctantly or hesitantly and regretted afterward, if consent given in such a manner, provided it is without fear of force, then the sexual connection would not amount to rape.

Question 14

Subjective / Objective Consent Test

Answer 14

Subjective

• Complainant did not consent
• Defendant did not believe complainant was consenting

Objective
- If defendant did believe complainant was consenting, the grounds for belief were not reasonable

Question 15

• Invalid Forms of Consent (S 128A) *

Answer 15

• Lack of protest or physical resistance
• Force, threat or fear of force
• Asleep or unconscious
• Affected by drugs and alcohol
• Intellectual, mental or physical impairment
• Mistake as to identity (made by the complainant submitting to the sexual connection, not the defendant)
• Mistake as to nature and quality of act (Limited to the physical character of the sexual connection)

Question 16

Consent of a Child

Answer 16

Distinction must be drawn between a child who is compliant and who is truly consenting, This will depend on the circumstances.

A 10/11 year olds may know what sexual intercourse is but due to their age and stage of sexual development, they will not understand the significance of the act.

Question 17

Relevant Elements in All Sexual Offences

Answer 17

• Penetration / act occurred without complainants consent
  AND
• Without the defendant believing on reasonable grounds that the complainant was consenting

Question 18

Attempted Sexual Violation

Answer 18

Intends to sexually violate the victim and takes step towards doing so, but full offence is not committed. Must have progressed past the stage of preparation and started a process intended to lead to the commission of the full offence.

Question 19

Rape Liabilities

Answer 19

• Consent (Lack of)
• Penetration
• Genetalia
• Intent

Question 20

Considerations for filing a charge of Assault with Intent to Commit Sexual Violation

Answer 20

• Where the defendant assaults the victim, intent on having intercourse, and to obtain the victims consent for that
• As an alternative charge to attempted violation when proximity between assault and completion of the intended sexual violation is an issue

Question 21

Sexual Conduct by Coercion

Answer 21

Everyone who has sexual connection or does an indecent act, knowing that the person has been induced to consent to the connection by threat is liable to imprisonment of 14 years or 5 years respectively.

Question 22

Inclusion of 1A within ‘Grooming’ legislation

Answer 22

Includes reference to a Constable pretending to be a young person under the age of 16 years old, if the offender, when taking any of the actions described, believed that the fictitious young person was a young person under the age of 16 years

Question 23

• When is the Offence of Sexual Grooming Complete *

Answer 23

• when the offender intentionally meets the young person
• when the offender travels with intention of meeting the young person
• when the offender arranges for or persuades the young person to travel with the intention of meeting them

Question 24

Sexual Conduct with Children & Young Persons Outside NZ - Provisions (S 144A CA 1961)

Answer 24

• Any offence under sections 132 & 134
• Offence against section 23(1) Prostitution Reform Act 2003

Charging document cannot be filed without consent of the Attorney General.

Question 25

Making an Intimate Visual Recording

Answer 25

Intentionally or recklessly makes an intimate visual recording of another person. Defendant must have made a recording, requires absence of consent and intended to make the recording (was reckless to).

Question 26

* Difference Between Rape and U/L Sexual Connection *

Answer 26

Rape is a specific form of sexual violation that involves the non-consensual penetration of the complainants genitalia by the offenders penis. Unlawful sexual connection has a wider meaning and includes any form of non-consensual penetration or oral connection with a persons genitalia or anus

Question 27

Intent - Assault With Intent to Commit Sexual Violation

Answer 27

The assault may arise in the hope that the complainant will change their mind and consent or intending to commit rape or sexual connection regardless of whether the complainant changes their mind. If defendant is only trying to change the complainants mind, they are liable for assault our indecent assault. If defendant is determined to commit SV and the assault is merely preliminary, they are liable for attempted SV or assault with intent to commit SV, depending on the proximity between the act and the intended offence

Question 28

Circumstantial Evidence

Answer 28

- The offenders actions and words before, during or after the event - The surrounding circumstances - The nature of the act itself

Question 29

* Proof of Age *

Answer 29

Crown to Prove complainants age at the time of the alleged offence. Birth certificate in conjunction with independent evidence that identifies the complainant as the person named in the certificate. Ideally from a parent. R v Forrest & Forrest

Question 30

When Age of Complainant in Doubt

Answer 30

s134 is primarily aimed at 12-15yrs, it overlaps with s132 in that it covers any person under the age of 16yrs. To avoid the risk of acquittal in cases where the precise age of the complainant at the time is in doubt, charges may be filed under both s132 and s134 or if necessary, under s134 only.

Question 31

What must be proved in Sexual Violation cases

Answer 31

Intentional act of offender having sexual connection with victim - Victim did not consent - Offender did not believe victim consented - If he did believe she was consenting, the grounds of the belief were not reasonable

Question 32

* Proving penetration *

Answer 32

Introduction into and penetration are synonymous. Even the slightest insertion is sufficient. Can be proved through: - Complainants evidence - Medical examination (physical evidence and DNA) - Defendants admissions

Question 33

* Proving Indecent Assault *

Answer 33

- Defendant intentionally assaulted victim - Circumstances accompanying assault were indecent - Defendant intended conduct that a reasonable person would find indecent When the issue of consent is raised: - Victim did not consent to the assault - Defendant did not honestly believe the complaint was consenting

Question 34

In negating consent, Crown must prove one of three things

Answer 34

- The victim did not consent, OR - The victims consent was not valid, OR - The accused did not believe on reasonable grounds that the victim was consenting

Question 35

* Proving Sexual Exploitation of Person with Significant Impairment / When the Offence is Complete *

Answer 35

- Has sexual connection / does indecent act knowing that the impaired person is a person with a significant impairment AND - has obtained the impaired persons acquiescence in, submission to, participation in or undertaking of the connection by taking advantage of the impairment

Question 36

Acceptable Corroboration Under the Evidence Act 2006

Answer 36

- Defendants silence - Victims distressed condition - Victims ability to describe a scene - Defendants Statement - Defendants Lies

Question 37

No Legal Spouse Defence

Answer 37

S 128 (4) - there is no legal defence when a spouse sexually violates their spouse just because the couple are legally married

Question 38

* Defence for S 134 - Sexual Conduct With a Young Person Under 16 *

Answer 38

Defendant must prove at the time of the offence: - They had taken reasonable steps to ascertain that the young person was at least 16 years old - They believed on reasonable grounds that the young person was at least 16 years old - The young person consented - No person can be convicted of a charge under this section if he or she was married to the young person concerned at the time of the sexual connection or indecent act.

Question 39

Defence to Grooming

Answer 39

S 131B(2) - The defendant to prove that: - They took reasonable steps to find out whether the young person was of or over the age of 16yo - They believed on reasonable grounds that the young person was of or over the age of 16yo

Question 40

Defence to Indent Assault

Answer 40

Consent is a defence involving adults, however not under s 132 or s 134

Question 41

* When can a Previous Consistent Statement be Admitted? *

Answer 41

As rebuttal evidence only

Question 42

* Elements required to be proved in a charge of Assault With Intent to Commit Sexual Violation *

Answer 42

- Assaulted the victim, | - Intended to commit sexual violation

Question 43

* Explain S129A(5) CA 1961, in Relation to Sexual Conduct With Consent Induced by Certain Threats *

Answer 43

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, 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 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 - an occupational or vocational position held by the person making the threat, or, a commercial relationship existing between the person making the threat and the person consenting.