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DDC Lessons > Module Study - Sexual Offences > Flashcards

Module Study - Sexual Offences Flashcards

1
Q

SEXUAL VIOLATION BY RAPE

A

Section 128(1)(a), Crimes Act 1961

  • A person
  • Rapes
  • Another person
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2
Q

SEXUAL VIOLATION BY UNLAWFUL SEXUAL CONNECTION

A

Section 128(1)(b), Crimes Act 1961

  • A person
  • Has unlawful sexual connection
  • With another person
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3
Q

ASSAULT WITH INTENT TO COMMIT SEXUAL VIOLATION

A

Section 129(2), Crimes Act 1961

  • A person
  • Assaults
  • Another person
  • With intent to commit sexual violation of the other person
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4
Q

Rape Definition

A

Section 128(2)

  • Person A rapes person B if person A has sexual connection person B, effected by the penetration of person B’s genitalia by person A’s penis.
    (a) without person B’s consent to the connection; and
    (b) without believing on reasonable grounds that person B consents to the connection.
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5
Q

Define Sexual Connection

A

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)

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6
Q

Section 128B CA1961 Sexual Violation Punishment

A

Section 128B of the Crimes Act 1961 outlines that the punishment for sexual violation is imprisonment for a term not exceeding 20 years, and imprisonment should always be imposed on conviction unless there are special circumstances that justify a departure from the rule (Circumestances of the person convicted or circumstances of the offences including nature and conduct of it).

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7
Q

Define Genitalia

A

Genitalia includes the penis and testicles of a male, and the vagina and vulva of a female. The definition also includes surgically constructed or reconstructed organs similar to naturally occurring male or female genitalia (whether the person concerned is a male, female or indeterminate sex).

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8
Q

Define Penis

A

The male reproductive organ. Penis includes any surgically constructed or reconstructed organ comparable to a naturally occurring penis (whether the person concerned is male, female, or of indeterminate sex)

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9
Q

R v Koroheke - Genitalia

A

The genitalia comprise the reproduction organs,
interior and exterior … they include the vulva [and]
the labia, both interior and exterior, at the opening
of the vagina

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10
Q

Define Consent

A

Voluntary agreement to something desired or proposed by another person.

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11
Q

R v Cox - Consent

A

Consent must be “full, voluntary, free and informed

… freely and voluntarily given by a person in a position to form a rational judgment.”

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12
Q

R v Koroheke - Consent

A

It is important to distinguish between consent that is freely given and the submission by a woman to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.

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13
Q

R v Gutuama - Consent

A

Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that [the complainant] was consenting”.

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14
Q

In proving that consent was not present in a case of sexual violation, the Crown must prove that:

A
  • [Subjective] Was the complainant not consenting?
  • [Subjective] Did the defendant believe the complainant was consenting?
  • [Objective] No reasonable person would have thought the complainant was consenting.
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15
Q

What are some circumstances that allowing sexual activity does not amount to consent?

A
  • Lack of protest or offering physical resistance to the activity of out fear
  • Due to force applied to him or her or some other person OR the threat of force to him or her or some other person OR or fear of force to him or her or some other person
  • Being asleep or unconscious
  • Affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity
  • Affected by an intellectual, mental or physical impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity
  • Mistaken about who the other person is (twins, etc)
  • Mistaken as to nature and quality of the act (fake medical exam)
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16
Q

THE SLIGHTEST DEGREE OF PENETRATION IS SUFFICIENT

A

For the purposes of paragraph (a) of the definition in subsection (1) of sexual connection, introduction to the slightest degree is enough to effect a connection

Introduction and penetration have the same meaning

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17
Q

PROVING PENETRATION

A

Proof of penetration may be established by:
• The complaints evidence
• Medical examination, including physical injuries and DNA evidence
• The Defendants admissions

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18
Q

Attempted Sexual Violation - Name, Act, Section and elements

A

Section 129(1) CA1961

  • A person
  • Attempts to commit sexual - violation of
  • Another person
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19
Q

Assault with intent to commit Sexual Violation - Name, Act, Section and elements

A

Section 129(2) CA1961

  • A person
  • Assaults
  • Another person
  • With intent to
  • Commit sexual violation of the other person
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20
Q

Elements of Assault

A
  • Intentionally applying or attempting to apply force to the person of another, directly or indirectly, or
  • Threatening by any act or gesture to apply force to the person of another, in circumstances where the victim believes the offender will be able to carry out the threat.
21
Q

R v Collister

A

Circumstantial evidence from which an offender’s intent may be inferred can include:

  • the offender’s actions and words, before, during and after the event
  • The surrounding circumstances
  • The nature of the act itself
22
Q

Sufficiently proximate

A

The offenders’ actions must be sufficiently proximate to the offense. The defendant must have gone beyond mare preparation and taken a real and practical step towards the actual commission of the crime.

23
Q

R v Harpur

A

An attempt includes “an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime”

24
Q

Examples of acts that may constitute an attempt:

A
  • Lying in waitm searching for or following the contemplated victim.
  • enticing the victim to go to the scene of the contemplated crime
  • Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the offense will be committed
  • Possession, collection or fabrication of materials to be employed in the commission of the offence
  • Soliciting an innocent agent to engage in conduct constituting an element of the offence
25
Q

SEXUAL CONDUCT WITH A CHILD UNDER 12

A

Section 132, Crimes Act 1961

• A person
       (1) Has sexual connection with
       (2) Attempts to have sexual connection with
       (3) Does an indecent act on
• A child
26
Q

SEXUAL CONDUCT WITH A YOUNG PERSON UNDER 16

A

Section 134, Crimes Act 1961

• A person
(1) Has sexual connection with
(2) Attempts to have sexual connection with
(3) Does an indecent act on
• A young person
27
Q

R v Cox x 3

A

Consent must be “full, voluntary, free and informed
… freely and voluntarily given by a person in a position to form a rational judgment.”

Although we do not exclude the possibility that a child of ten or eleven may be able to give full, voluntary, free, and informed consent to sexual intercourse, the circumstance that would justify that conclusion would be exceptional if not rare.

Save in exceptional and rare circumstances, even where she indicates an agreement to the act occurring, no reasonable adult would have grounds for believing that a ten or eleven-year-old girl has the experience or maturity to understand the nature and significance oft the act.

28
Q

DEFENCE TO A CHARGE UNDER SECTION 134

A

Section 134a Crimes Act 1961

(1) It is a defence to a charge under section 134 if the person charged proves that, -
(a) Before the time of the act concerned, he or she had taken reasonable steps to find out whether the young person concerned was of or over the age of 16 years; and
(b) At the time of the act concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years; and (c) The young person consented

29
Q

R v Forrest and Forrest

A

The best evidence possible in the circumstances should be adducted by the prosecution in proof of the victims age.

The crown must prove the complainants age at the time of the alleged offence using the best evidence available.

This generally involves producing the complainants birth certificate in conjunction with independent evidence that identifies the complainant as the person named in the certificate.

30
Q

INDECENT ASSAULT

A

Section 135, Crimes Act 1961

  • A person
  • Indecently assaults
  • Another person
31
Q

R v Court

A

Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of the complainant”.

Reminder: Think of a tennis coach placing his hand on a young student’s butt while teaching them to play on the tennis court.

32
Q

R v Dunn - 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.”

33
Q

R v Norris

A

If a person who is charged with indecent assault is able to establish that they honestly believed that the complainant was consenting, they are entitled to be acquitted even though the grounds of his belief were unreasonable.

The prosecution must prove the complainant did not consent and the defendant did not honestly believe the complainant was consenting.

34
Q

R v Leeson - Indecent Assault

A

“The definition of ‘indecent assault’ … is an assault

accompanied with circumstances of indecency …”

35
Q

Define ‘indecent act’

A

as an act accompanied by circumstances of indecency.

36
Q

Explain Section 129A (5) of the Crimes Act 1961 in relation to Sexual conduct with consent induced by certain threats:

A

Section 129A - Sexual conduct with consent induced by certain threats

  • A person
  • has sexual connection
  • with another person
  • knowing that the other person has been induced to consent to the connection by threat

Threats defined:

(a) A threat that a 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 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—
(i) An occupational or vocational position held by the person making the threat; or
(ii) A commercial relationship existing between the person making the threat and the person consenting.

37
Q

Incest - Act, Section, Elements

A

Incest - 130 CA 1961

(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 changed know of the relationship

(2) Eveyone of or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 10 years.

38
Q

Difference between sexual relationship with a step-parent and adoptive parent

A

Step parents cannot be charged with incest.

Adoptive parents can be charged if they have legally adopted the child and not just consented to their partner adopting the child.

39
Q

Sexual conduct with dependent family member - Act, section, elements

A

Sexual conduct with dependent family member - Section 131 CA1961

  • A person
    (1) Has sexual connection with
    (2) Attempts to have sexual connection with
    (3) Does an indecent act on
  • A dependent family member under 18 years of age

Note: the dependant family member cannot be charged as parties to the offense and consent is not a defense to a charge under this section.

40
Q

Define dependent family member

A

For the purposes of section 131, one person is a dependent family member of another person—

(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) or subparagraph (ii) or

subparagraph (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 paragraph (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.

41
Q

Meeting young person following grooming - Act, section, elements

A

Meeting young person following grooming - Section 131B CA1961

(a)

  • A person
  • having met or communicated
  • with a person under the age of 16 years on an earlier occasion, he or she takes one of the following actions:
    (i) intentionally meets the young person:
    (ii) travels with the intention of meeting the young person:
    (iii) arranges for or persuades the young person to travel with the intention of meeting him or her;

and

(b) at the time of taking the action, he or she intends -
(i) to take in respect of the young person an action that, if taken in New Zealand, would be an offense against this Part, or against any of paragraphs (a)(i), (d)(i), (e)(i), (f)(i), of section 98AA; or
(ii) that the young person should do on him or her an act the doing of which would, if he or she permitted it to be done in New Zealand be an offence against this Part on her or her part.

42
Q

Bestiality Section, act, elements

A

Bestiality Section 143 CA1961

(1) Everyone one is liable to imprisonment for a term not exceeding 7 years who commits bestiality.
(2) this offence is complete upon penetration.

43
Q

Indecency with Animal Section, act, elements

A

Indecency with Animal Section 144 CA1961

Everyone is liable to imprisonment for a term not exceeding 3 years who commits any act of indecency with an animal.

44
Q

Section 144A CA1961

A

Sexual conduct with children and young people outside New Zealand

Any sexual acts on children and young persons that would be considered a crime in New Zealand can be punished if committed outside of New Zealand and hold the same sentence.

45
Q

Section 144B Consent of Attorny-General

A

Section 144B Consent of Attorney-General

  • No charging document may be filed for an offence against Section 144A with out the consent of the Attorney-General.
  • The person can still be arrested and put on bail but no further proceedings shall be taken until consent has been obtained.
46
Q

Section 216H CA1961

A

Section 216H CA1961 - Prohibition on making intimate visual recording

Eveyone is liable to imprisonment for a term not exceeding 3 years who intentionally or recklessly makes an intimate visual recording of another person.

47
Q

What is significant impairment?

A

Intellectual, mental or physical condition or impairment (or combination of the above) that significantly impairs the person’s capacity to:

  • understand the nature of sexual conduct; or
  • to understand the nature of decisions about sexual conduct or
  • to foresee the consequences of decisions about sexual conduct or
  • to communicate decisions about sexual conduct
48
Q

Sexual exploitation of person with significant impairment elements

A

Section 138 crimes Act 1961

Everyone is liable to imprisonment for a term not exceeding 10 years who has or attempts to have exploitative sexual connection with a person with a significant impairment.

For the purposes of the above a person has exploitative sexual connection with a person with a significant impairment if he or she a has

a. A sexual connection with the impaired person knowing that the impaired person is a person with 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

The same implies for indecent assault however the term of imprisonment for that would be 5 years.

49
Q

When is the offence of grooming a young person complete?

A
  • when the parties meet
  • the defendant travels or makes arrangements to meet the the complainant with the relevant intent
  • to be intentional the meeting needs only be ‘purposely arranged’.

DDC Lessons (34 decks)

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