Other Flashcards
Section 128A, Crimes Act 1961
Matters not constituting consent
A person does not consent to sexual activity:
(1) Just because he or she does not protest or offer physical resistance
(2) He/she allows the activity because of:
(a) force applied to him or her or some other person
(b) the threat of application of force to him/her/some other person
(c) fear of application of force to him/her.some other person
(3) If the activity occurs while he or she is asleep or unconscious
(4) If the person is so effected by alcohol or some other drug that they cannot consent or refuse to consent
(5) Is affected by an intellectual, mental or physical condition or impairment of such a nature and degree that they cannot consent or refuse to consent
(6) If they allows the sexual activity because he/she is mistaken about who the other person is
(7) If they allow the act because he/she is mistaken about the nature and quality
When is consent relevant?
At the time of the sexual activity
Attempted sexual violation Section 129(1), Crimes Act 1961
Subsection (1) - Attempts to commit sexual violation
Person must:
(1) Intent to commit the offence, and
(2) Take a real and substantial step towards achieving that aim
Attempts - does or omits an act for the purpose of accomplishing his object.
Must have progressed past the stage of preparation and started a process intended to lead to the commission of full crime.
Sufficiently proximate - defendant’s actions at the time and evidence of intent based on circumstances leading up to that point
Intent -
(1) Intended to have sexual connection with complainant
(2) Complainant did not consent to the sexual connection
(3) The defendant did not believe on reasonable grounds that the complainant was consenting
Consent - child (no defence) Section 132(5), Crimes Act 1961
Consent of the child is no defence to a charge of of sexual conduct with a child under 12yrs
Mistake of age - child Section 132(4), Crimes Act 1961
There is no defence to a charge of sexual conduct with a child that the offender believed the complainant was 12yrs or age or older.
Married to young person Section 134(4), Crimes Act 1961
No person can be convicted of a charge under 134 if he or she was married to the young person concerned at the time of the sexual connection or indecent act
Incest
Section 130, Crimes Act 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 charged knows of the relationship
Relates to persons of or over the age of 16yrs. Ten years imprisonment.
Consent is no defence. Relates to the sexual connection carried out with the consent of both parties.
Does not include step-parent and step-child.
Birth and adoptive parents are both considered parents.
Sexual conduct with dependant family member
Section 131, Crimes Act 1961
(1) Sexual connection with dependant family member (7yrs imprisonment)
(2) Attempts to have sexual connection with DFM (7yrs imprisonment)
(3) Does an indecent act on a DFM (3yrs imprisonment)
Relates to DFM under the age of 18yrs.
DFM cannot be charged as a party to offending.
No defence of consent of DFM.
What is a dependant family member?
If the other person has power or authority over him or her and is -
(i) Parent, step-parent, foster parent, guardian, uncle or aunty, or
(ii) Parent, step-parent or foster parent or a person described in (i), or
(iii) A child or his or her parent or step-parent, or
(iv) The spouse or defacto partner of a person described in subsection (i) or (ii) or (iii)
Includes other persons who have power or authority, or responsibility for, or significant role including members of family, whanau, household etc
Includes half-siblings of persons parents, former adoptive parents, guardians and step-parents
Meeting young person following sexual grooming etc
Section 131B, Crimes Act 1961
Having met or communicated with person under 16yrs on an earlier occasion, he or she -
(i) intentionally meets the young person, or
(ii) travels with the intention of meeting the young person, or
(iii) arranges of persuades the young person to travel with the intention of meeting him/her, and
At the time if the action, he/she intends -
(i) To take an action that if taken in NZ would be an offence against this Part or against any of paragraphs (a)(i), (d) (i), (e) (i), (f) (i) of section 98AA(1) (sexual exploitation of under 18yr olds), or
(ii) That the young person should do on him/her an act the doing of which would be an offence against this Part
When is the offence complete?
(Meeting young person following sexual grooming etc
Section 131B, Crimes Act 1961)
When the parties meet, or the defendant travels or makes arrangements to meet the complainant, with the relevant intent
Sexual exploitation of a person with significant impairment
Section 138, Crimes Act 1961
(1) Has exploitative sexual connection with a person with a significant impairment
(2) Attempts to have exploitative sexual connection with a person with a significant impairment
(4) Exploitatively does an indecent act on a person with a significant impairment
A person has exploitative sexual connection / indecent act on a person if he or she -
(a) Has sexual connection / does an indecent act on the impaired person knowing that they are a person with a significant impairment, and
(b) Has obtained the impaired person’s acquiescence in, submission to, participation in, or undertaking of the act, by taking advantage of the impairment
Significant impairment is an intellectual, mental or physical condition or impairment (or combination of) that affect a person to such an extent that it significantly impairs the person’s capacity -
(a) to understand the nature of sexual conduct, or
(b) to understand the nature of decision of sexual conduct, or
(c) to foresee the consequences of decisions about sexual conduct, or
(d) to communicate decisions about sexual conduct
Offences against animals
Section 142A, 143 & 144 Crimes Act 1961
Compelling indecent act with animal
Section 142A, Crimes Act 1961 (14yrs)
Compels any other person by the actual or threatened application of force to that person or some other person, to perform or participate in any act of indecency with an animal (whether or not involves penetration)
Bestiality
Section 143, Crimes Act 1961 (7yrs)
Commits bestiality. Offence is complete upon penetration
Indecency with animal
Section 144, Crimes Act 1961 (3yrs)
Commits any act of indecency with an animal
Sexual conduct with children outside NZ
Section 144A, Crimes Act 1961
Being a NZ citizen or ordinarily resident in NZ -
(a) does outside NZ, with or on a child under 12yrs act specified under subsection 2
(b) does outside NZ, with or on a person under 16yrs act specified under subsection 3
(c) does outside NZ, with or on a person under the age of 18yr act under subsection 5
Sub 2 = Sexual connection, attempted sexual connection or indecent act which child under 12
Sub 3 = Sexual connection, attempted sexual connection or indecent act with person under 16
Sub 4 = An act that if done in NZ would be an offence against 23(1) of the Prostitution Reform Act (acts involved persons under 18 prostituting, including earning money)
Must have the consent of the Attorney General to charge a person under this act (s144B, Crimes Act 1961)
Organising or promoting child sex tours
Section 144C, Crimes Act 1961
7yrs imprisonment
(a) Makes or organises travel arrangements for or on behalf of any person with the intention of facilitating offence against 144A Crimes Act (whether or not actually committed)
(b) Transports any other person to a place outside of NZ with the intention of facilitating of an offence against 144A Crimes Act (whether or not actually committed)
(c) Prints or publishes any information that is intended to promote conduct that would constitute an offence against 144A Crimes Act or to assist any other person to engage in such conduct
