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Sexual Offences > Module 7: Sexual Offences > Flashcards

Module 7: Sexual Offences Flashcards

1
Q

What must the crown prove beyond reasonable doubt in all cases of sexual violation?

A

Intentional act by the offender involving sexual connection with the complainant, AND
The complainant did not consent to the sexual act, AND
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.

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2
Q

What does Section 128(4) state?

A

That a husband who sexually violates his wife has no legal defense due to the fact they are married.

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3
Q

How do you prove penetration?

A

The complainant’s evidence.
Medical examination (Injuries, DNA).
The Defendants admissions.

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4
Q

What does Section 127 of the Crimes Act state?

A

No presumption because of age, it would not be a defence to a sex related charge to say that either of the parties was too young or too old to have a sexual connection. Any person of any age is capable (in a legal sense).

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5
Q

What does Section 128A of the Crimes Act state?

A

Matters not constituting consent:

  • Does not consent because they do not protest or offer physical resistance.
  • Does not consent if force applied to the victim or another person, threat of force or fear of force on the victim.
  • Does not consent if asleep or unconscious.
  • Does not consent if affected by alcohol or drugs to such a degree they cannot refuse.
  • Does not consent if affected by mental or physical disability where they cannot refuse.
  • Mistaken identity.
  • Mistaken about the nature and quality of the sexual act.
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6
Q

Section 129(1) Attempted Sexual Violation and Section 129(2) Assault with Intent to Commit Sexual Violation are distinguished by?

A

129(1) - An attempt does not necessarily involve an assault.

129(2) - May not be sufficiently proximate to the full offence to constitute an offence.

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7
Q

List the two main forms of sexual violation.

A

Rape and unlawful sexual connection.

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8
Q

What are the penalty provisions for sexual violation set out in Section 128B of the Crimes Act?

A

Punishment for sexual violation is 20 years, and imprisonment should always be imposed on conviction unless there are special circumstances.

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9
Q

In negating consent, the Crown has to prove one of three things. List the three things.

A

The victim did not consent or
The victim’s consent was not valid or
The Defendant did not believe on reasonable grounds that the victim was consenting.

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10
Q

What two elements need to proved in a charge of Assault with Intent to Commit Sexual Violation?

A

Assaulted the victim AND

Intended to commit sexual violation.

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11
Q

What is a defence to a charge under Section 134 of the Crimes Act?

A

Taken reasonable steps to find out whether the young person was of or over the age of 16 years AND
Believed the young person was of or over the age of 16 years AND
The young person consented.

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12
Q

In an Indecent Assault case, what must the Crown prove?

A

The defendant intentionally assaulted the complainant
The circumstances accompanying the assault were indecent.
The defendant intent the conduct that a reasonable person would find indecent.

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13
Q

Can a 16 year old girl be charge with having consensual sex with 14 year old by?

A

Yes, the girl can be charged as its an offence of Sexual Conduct with a Young Person Under 16 (s134).

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14
Q

Who does the ASAI policy apply to?

A

To all cases where the victim of the alleged
offending (male or female) is 17 years of age or older at the time of making the
complaint.

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15
Q

Specially trained sexual assault medical forensic practitioners role is to?

A

Primary medical care.
Retrieve forensic medical evidence.
Referring victims to follow up medical care.
Provide examination reports to Police/Prosecutions.
Providing unbiased expert evidence in Court.

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16
Q

What are the 3 timings of Adult Sexual complaints?

A

Acute < 7 days
Non Acute - 7 days to 6 months.
Historic - > 6 months

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17
Q

What are the 12 steps of investigation in ASAI guidelines?

A 
I - Initial actions on contact
C - Case referral
S - Specialist Support
P - Prelim Interview
I - Information Feedback
M - Medical Examination
F - Formal Interview
I - Investigation and evidence assessment
R - Resolutions
P - Prosecutions
F - Final Actions
P - Prevention
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18
Q

If a male has sexual intercourse with his 18 year old home stay student, is there any offence?

A

No offence committed (18 years and over is not an offence).

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19
Q

When is the offence of sexual grooming complete?

A
  • 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 him or her
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20
Q

When can a previous consistent statement be admitted?

A

As rebuttal evidence only

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21
Q

How far out must a prosecutor give the transcript to the defence before preliminary hearing or defended summary hearing?

A

At least 7 days

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22
Q

Can a 16 year old female be charged with having sexual intercourse with a 14 year old male?

A

Yes.

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23
Q

Name three circumstances where Police would remove a child from a household:

A

Serious Wilful neglect
Serious physical abuse
Sexual assault
When a child is witness to a serious assault
Any allegations made against a CYF carer involving serious physical abuse
Any allegations made against CYF staff or Police involving serious physical abuse

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24
Q

S195 CA 1961, What is necessary to prove criminal liability in failing to protect a child?

A
  • the offence applies to members of the same household as the victim
  • the offender must be 18 years or over

KNOWS (mens rea) the victim is at risk of death, GBH or sexual assault as a result of the unlawful acts or omissions of another person; and
FAILS (actus reus) to take reasonable steps to protect the victim from that risk

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25
Q

In what other ways can a witness give evidence? Section 105 Evidence Act.

A
  • while in the courtroom but unable to see the defendant or some other specified person (Screens)
  • from an appropriate place outside the courtroom, either in New Zealand or elsewhere (CCTV)
  • by a video record made before the hearing of the proceeding (DVD)
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26
Q

Before attending a Medical Examination, what should you explain to a victim?

A
  • that the examination will be conducted by a medical forensic practitioner specially trained in examining victims of sexual assault
  • the benefits of a full medical forensic examination including:
    • potential benefit to their physical, sexual and mental health
    • how the examination can help Police obtain evidence to apprehend the offender
  • the expected time frame for the examination and, if appropriate, possible outcomes of the examination

Preference on male / female doctor.

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27
Q

What are the three areas to consider in determining whether physical abuse is serious and there meets the threshold for referral as a CPP case?

A
  • the action of the abuse
  • the injury inflicted, and
  • the circumstances (factors of the case)
28
Q

Can a child aged 12 consent to sexual intercourse?

A

Yes - only in exceptional rare circumstances, however Section 132(5) states there is no defence of consent with sexual connection with a child under 12 years.

29
Q

Is it an offence for an adoptive parent to have sexual intercourse with his 18 year old daughter?

A

Yes it is, an adoptive parent is a ‘parent’ thus incest.

30
Q

At what age does a file become an ASAT file?

A

17 years or older at the time of making the complaint

NOT 16

31
Q

No question can be put to the victim regarding… (S44, Evidence Act 2006)

A

-previous sexual history with any person other than the defendant

32
Q

What 3 things must the Crown prove in relation to an Indecent Assault?

A
  • defendant intentionally assaulted the complainant
  • the circumstances accompanying the assault were indecent
  • the defendant intended the conduct that a reasonable person would find indecent
33
Q

Can a 17 year old uncle be charged with failing to protect a child?

A

No - Defendant must be of or over the age of 18.

  • offenders must be from the same household, or visit frequently
  • must be over 18 years of age

Possible answer - 30 year old uncle who visits the address frequently

34
Q

What are the three categories of file in relation to ASA?

A

Acute/non-acute/historic

35
Q

Before attending a MEK, what sound you remind the victim?

A
  • no eating or drinking
  • no going to the toilet (if necessary, use a toxicology kit to capture uring and ask the female victim not to wipe)
  • no washing or showering
  • no washing of hands or biting fingernails
  • no changing clothes
  • no smoking
  • no brushing combing hair
  • no brushing teeth or rinsing mouth
36
Q

In certain circumstances S87 EA2006, the Judge can ask the witness to state their address details. In what circumstances will this occur?

A
  • if 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.
37
Q

When is the offence of having exploitative sexual connection with a person with a significant impairment complete?

A

(a) has sexual connection with the impaired person knowing that the impaired person is a person with a significant impairment; and
(b) has obtained the impaired persons acquiescence in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment.

38
Q

What are the 3 categories for CYFS in child cases?

A

Critical, Very Urgent, Urgent.

39
Q

What Actions will meet the threshold for serious physical abuse (child)?

A 
Blow or kick to head
Shaking of infant
strangulation
use of an object as a weapon
attempted drowning
40
Q

What Injuries will meet the threshold for serious physical abuse (child)?

A

Death
Bone fracture
Burn
Concussion
Any injury that requires medical attention
Bruising or abrasions where the child is very young and not yet mobile making it unlikely caused by itself.

41
Q

What should all child protection cases be coded?

A

6C

42
Q

If a child has disclosed sexual or physical assaults to an adult, what should you do?

A

Do not ask the child any questions, gather information from the adult.

43
Q

The CYF refferal in a CPP case must be completed by:

A

Immediately in critical or very urgent cases. (24 hours or less)
Within two full working days for urgent cases.

44
Q

An IJIP plan in a CPP case can help staff agree and understand?

A

Who is involved in the case.
What they will do.
When they will do it.

45
Q

What must a IJIP cover in a CPP case?

A

Child’s safety and well being.
Any joint visits required.
Management of victim initial interview and ethnic needs.
Specialist child witness interview, interviews of other offenders and witnesses.
Collection of evidence.
Referral to medical practitioner.

46
Q

In CPP cases what are examples of serious abuse?

A 
Serious physical abuse.
sexual imaging of child
sexual abuse
Wilful neglect
allegations against approved caregivers
witness to serious family violence
47
Q

When can questions be asked of an sexual assault complainant about her sexual history under Section 44(3)?

A

When the Judge is satisfied that it has such direct relevance to the issue if it was excluded it would be contrary to the interest of justice.

48
Q

What does Section 87 of the evidence act protect?

A

Privacy of the victims precise address.

49
Q

What does Section 88 of the evidence act protect?

A

Disclosure of the complainants occupation.

50
Q

What does Section 121 of the evidence act state?

A

The complainants evidence does not have to be corroborated in cases of sexual nature.

51
Q

List grounds on which a direction can be made under S103(3) of the Evidence Act in regards to a witness giving evidence in an alternative way.

A
  • Age and maturity of witness
  • Physical, intellectual impairment
  • Trauma suffered by witness
  • Fear of intimidation
  • linguistic or cultural background
  • nature of proceeding
  • nature of evidence to be given
  • relationship of witness and any part in proceedings.
  • absence from NZ
  • Other grounds
52
Q

What are the requirements under Section 28 of the Evidence Regulations Act 2007?

A

Prosecutor must ensure that a transcript is given to defence as soon as practicable after the defendant has pleaded not guilty.

53
Q

List four Police responsibilities to victims and their rights.

A
  • All obligations under VRA 2002 must be met and all contact recorded.
  • Victim given information about progress within 21 days.
  • victims must be kept up to date on investigation and outcomes.
  • As soon as offender charged, consider s29 offence and notification system.
  • informed of outcome of the case, property returned.
54
Q

When interacting with victims of sexual offences, what actions should you take to provide a safe and secure environment in which they may regain some control of their lives?

A

CALMTEA:
Conduct - sensitive and concerned manner.
Accept - telling the truth
Listen - to what they say, their account, venting.
Medical - establish if they need medical attention.
Treat - them courteously
Explain - Process and why you need to ask certain questions.
Advise - them of local counselling services

55
Q

What do you do on initial actions for a ASA case?

A
  • Ascertain if the matter is of sexual nature.
  • determine what immediate actions are required
  • victim details if reported by other person
  • brief circumstances
  • scene location
  • offenders description

Pending transfer to CIB:

  • ensure victims safety and immediate health looked after
  • consider other needs (child care)
  • secure witnesses or suspects
  • preserve crime scene
  • other actions required
56
Q

What needs to be established during a preliminary interview?

A
  • Brief outline of facts
  • Risks to Victim’s safety
  • Risks to Public’s safety
  • Urgent investigation needs, considering potential loss of evidence, medical circumstances and suspects’ likely actions.
57
Q

What should you tell a the medical forensic practitioner about the victim for a ASA case?

A
  • Age & gender
  • Where sexual assault occured
  • brief outline of information known
  • victims wishes about gender of Dr
  • discuss if child case or not

This will allow

  • Best timing and approach for the exam
  • how best to meet the victims needs
58
Q

After conducting the MEK exam the practitioner:

A
  • Seals and labels all samples with the victims name..

- Bags, seals and labels any items of clothing removed

59
Q

Before the MEK is sealed the attending officer debriefs with the practitioner asking them to:

A

-advise on any immediate needs of the victim
-verbally summarizes the exhibits and significance
-identify any possible forensic items that might need to go to ESR
-identify any injuries that should be photographed
identify and significant disclosures made to Dr during exam.

60
Q

What is the Section 134(4), CA61 defence to sexual conduct with a young person under 16?

A

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 concerned.

61
Q

What is the objective test for indecency?

A

Indecency must be judged in light of the time, place and circumstances. It must be something more than trifling, and be sufficient to warrant the sanction of the law.
It must also offend 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”.

62
Q

What is the definition of sexual connection?

A

Section 2, Crimes Act 1961
Interpretation
Sexual connection means—
(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) the continuation of connection of a kind described in paragraph (a) or paragraph (b)

63
Q

What is the legal defence to Meeting A Young Person Following Grooming?

A

Section 131B(2), Crimes Act 1961:
It is a defence to a charge under subsection (1) if the person charged proves that,—
(a) before the time he or she took the action concerned, he or she had taken reasonable steps to find out whether the young person was of or over the age of 16 years: and
(b) at the time he or she took the action concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years.

64
Q

What is the two-fold test for intent?

A

That the Defendant intended to do a certain action and that they intended to achieve a certain result.

65
Q

How is intent proven?

A

The offender’s actions and words before, during and after the event
The surrounding circumstances
The act itself

66
Q

Who may be held liable for failing to protect a child or vulnerable adult?

A

Anyone over the age of 18 who is:

  • A member of the same household as the Victim (including persons who are so closely connected with the household that it is reasonable, in the circumstances, to regard them as a member of the same household); or
  • A person who is a staff member of any hospital, institution, or residence where the victim resides.
67
Q

A person does not consent to sexual activity if he or she allows the activity because?

A

Section 128A(2), Crimes Act 1961

(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

Sexual Offences (4 decks)

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