Sex Flashcards
1
Q
With a case of sexual violation, what you must prove beyond reasonable doubt?
A
There was an intentional act by the defendant involving sexual connection with the complainant AND
the complainant did not consent AND
the defendant did not believe the complainant was consenting OR
If the defendant did believe the complainant was consenting the grounds for the belief were not reasonable
2
Q
Is there a defense if the person you rape is your spouse (legally married)’?
A
No, unless the offending happened before 1986
3
Q
Section 128B CA 1961?
A
The term of imprisonment is not exceeding 20 years and everyone who commits sexual violation must be sentenced to imprisonment unless the Court thinks that person should not be sentenced to imprisonment;
-the particular circumstances of the person convicted and
-the particular circumstances of the offence including nature of conduct
4
Q
Section 128(1)(a)
A
A person
Rapes
Another person
5
Q
Section 128(1)(b)
A
A person
Has unlawful sexual connection
With another person
6
Q
Definition of sexual connection
A
Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes of;
-a part of the body of another person
-an object held or manipulated by another person
Connection between the mouth or tongue of one person and a part of another person’s genitalia or anus
The continuation of a kind of described connection in paragraph a and b
7
Q
What is the difference between penetrate and introduce into?
A
There is no difference and it’s not necessary to differentiate between the two
8
Q
Definition of penetration in the slightest degree?
A
Any penetration no matter how slight or fleeting is sufficient
9
Q
How do you prove penetration?
A
-Complainants evidence
-Medical exam, including physical injuries and DNA evidence
-The defendants admissions
10
Q
Definition of genitalia
A
Includes the penis and testicles of a male and vulva and vagina of a female
Also includes surgically constructed or reconstructed organ analogous to naturally occuring male or female genitalia (whether the person concerned is male female or or indeterminate sex)
11
Q
R v Koroheke
A
The genitalia comprises of reproduction organs, interior and exterior. They include the vulva and the labia both interior and exterior at the opening of the vagina
12
Q
What was held in R V N?
A
The offence is sufficiently proved by penetration of the vulva by the penis, proof of penetration of the vagina is not required
13
Q
Definition of penis
A
Includes surgically reconstructed or constructed organ analogous to a naturally occuring penis (whether the person is male, female or of undetermined sex)
14
Q
Why is anal penetration not considered rape?
A
The anus is not defined as part of a person’s genitalia, the charge would be unlawful sexual connection
15
Q
What are genuine medical purposes?
A
When a doctor is legitimately performing something such as cervical screening or a prostate exam this is not a violation.
If the doctor pretends it’s for a medical procedure but does it for sexual gratification this may amount to sexual violation
16
Q
Define continuation?
A
Where sexual activity starts consensually but the consent is later withdrawn
17
Q
What was held in R v Kaitamaki in relation to continuation
A
If after penetrating the victim the defendant realises the victim is not consenting but continues anyway that amounts to rape
18
Q
What is section 127?
A
There is no of law that a person is incapable of sexual connection because of his or her age. It therefore is not a defence that the victim was too young or too old to have sexual connection
19
Q
What is the subjective and objective test in relation to consent that the crown must prove?
A
Subjective: victim did not consent
Subjective: offender did not believe the complainant was consenting OR
objective: if the offender believed the victim was consenting, the grounds for the belief were not reasonable
20
Q
R v Cox - consent
A
Consent must be full, voluntary and informed, freely and voluntarily given by a person in a position to form a rational judgement
21
Q
R v cook - consent
A
To be effective consent must be real, genuine or true consent and that it is conveyed by words conduct or both
22
Q
What is reluctant consent (R v Herbert)
A
The court held that true consent may be given hesitantly or reluctantly and may be regretted afterwards, provided it’s given without fear of the application of force of the result of actual or threatened force then the act of sexual connection would not be rape
23
Q
What is it up to the crown to prove be for the subjective test in relation to absence of consent?
A
That the complainant was not consenting, it is not up to defence to prove that the victim was consenting
24
Q
Who’s point of view is the subjective test of belief in consent?
A
The defendants, what were they thinking at the time? If the defendant believed the victim was consenting you need to applying the objective test to see if they had reasonable grounds for their belief
25
R v Gutuama
Under the objective test the Crown must prove that no reasonable person in the accused shoes could have thought the victim was consenting
26
What was held in R V Clarke
The defendant was one of three men who raped a 16 year old girl at a party. He took her lack of resistance as consent and said that the alcohol he had consumed affected his judgement
-the court rejected the argument ruling out the defendants personal characteristics as relevant factors in a purely objective test
27
Can the defendant be reckless as to the presence of consent
Recklessness as to whether the complainant is consenting or not is not consistent with having a reasonable belief in consent
28
What did the court discuss in R V Adams?
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
29
Under section 128A, what are some situations where apparent consent is not valid?
Being asleep
Being unconscious
Submitting as a result of fear or force
Mistake of identity of the offender
Mental Incapacity
So affected by drugs or alcohol cannot consent
Consent due to mistaken nature or quality of act
30
Under section 128A, what does allows mean?
Acquiesces (accept something reluctantly without protest) submits to, participates in and undertakes sexual activity
31
What are the two rules in relation to lack of protest or resistance?
-lack of resistance or protest doesn't mean there is consent, what is relevant is what is the complainants state of mind
-the fact the complainants lack of consent was not communicated may be relevant in the belief of the defendant of the victims consent
32
What are three types of violence that doesn't amount to consent?
-Force applied to himself herself or some other person
-threats (whether express or implied) of the application of force to himself herself or some other person
-the fear of the application of force to him or her or some other person.
33
What is the degree of force necessary to negate consent?
Force that is intended or sufficient to cause bodily harm. A lesser degree of force would be accepted if it caused the victim to submit or not put up a fight
34
R v Koroheke - consent
It is important to distinguish between consent that is freely given and 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 cooperate is not true consent
35
Does prior agreement to sex before asleep or unconscious count as consent?
No
36
What did the court hold in R v Isherwood?
Proof that the influence of liquor or drugs has had a disinhibiting effect on the mind of a complainant is not necessarily incompatible with consent. It's all a question of degree.
37
In cases where a victim is asleep, unconscious or so affected by drugs or alcohol what do the crown have to prove?
In these cases it's often that the victim has no recollection of the events and will not be in a position to say if they consented or not. If these subsections apply it is not essential that there be evidence the complainant did not consent
38
Where someone is physically or mentally impaired what should you consider?
-Whether the impairment was sufficiently severe as so to deprive the complainant of the capacity to withhold or give consent
-A charge of sexual exploitation of a person with significant impairment - section 138
39
Give an example of mistake as to Identity
Defendant gets into bed with a sleeping woman who had sexual intercourse with a man earlier in the night. Defendant initiates sex with women, she gives consent thinking it was the original male
Mistaken identity is the mistake made by the person submitting to the sexual connection, not a mistake by the defendant
40
Mistake to nature and quality of act
Agrees to foreplay but sex occurs still rape
41
Example of mistake as to nature of act medical stuff
R v Williams, choirmaster had sexual connection with 16 year old who believed it was to improve her singing voice. Guy was convicted of rape
42
Under section 128(consent) what does it cover?
Sexual connection and extends to sexual activity that without consent would be an indecent assault
43
Define rape
Person A rapes person B if person A has sexual connection with Person B effected by the penetration of person B's genetalia by person As penis
-without B's consent a d
-without believing on reasonable grounds that person B consents to the connection
44
What is the distinguishing factor between attempted sexual violation and assault with intent to commit sexual violation?
Attempt does not necessarily involve an assault
Assault with intent may not be sufficiently proximate to the full offence
45
R v Harpur - attempts
Attempts includes an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime
-the court may have regard to the conduct viewed cumulatively up to the point the conduct stops the defendants conduct may be considered in it's entirety. It's always relevant to consider what still needs to be done although this won't be determinative
46
Section 129 CA 1961
47
What are two situations where you might charge someone with assault with intent to commit sexual violation
Offender assaults the complainant because they are intent on having intercourse with the victim and obtaining their consent for it
As an alternative charge to an attempted sexual violation
48
In negating consent, what must the Crown prove?
The victim did not consent OR
The consent was not valid (impaired etc OR
The belief the victim was consenting was not reasonable
49
Section 132 (1)
Sexual conduct with a child under 12
A person
Has sexual connection
with a child under 12
50
Section 132(2)
Sexual conduct with a child
A person
Attempts to have sexual connection with a child under 12
51
Section 132(3)
Sexual conduct with a child
A person
Does an indecent act
With a child under 12
52
What are the Penalties for Sexual conduct with a child?
(1) 14 years
(2) 10 years
(3) 10 years
53
What are two things that aren't defences to a charge under section 132?
The person charged believing the child was of or over 12 years of age
The child consented
54
R v cox - consent of a child
It is not excluded that a child of ten or eleven could give full, voluntary, free and Informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare
55
How do you decide between a charge under 128 or 132
128 - rape/sexual connection (no consent)
132- sexual conduct with a child (consent)
Pretty rare that a child could give full voluntary and informed consent. Unlikely and rare that they would have a proper understanding of sex.
Distinction must be drawn between a child who is compliant and one who is truly consenting based on a full understanding of the act
56
R v cox - belief in child's consent
No reasonably adult would have grounds for believing that a ten or eleven years old girl has the experience or maturity to understand the nature and significance of the act
57
R v Forrest & forrest
The best possible evidence in the circumstances should be produced by prosecution for proof of the victims age
58
What's the difference between indecent act and indecent assault as per section 132
Under section 132 they're included as the same thing
59
Under section 132(3) what are the three circumstances that are covered if the child consents?
-offenders does the act on the child
-the act is mutual
-child does the act on the offender
60
Define indecent/indecent act
An act accompanied by circumstances of indecency
Conduct directed at a person that is offensive to public moral values
61
R v Court
Indecency means "conduct that right thinking people will consider an affront to the sexual modesty of the complainant"
62
What was held in R v Dunn?
Objective test:
Indecency must be judged in light of time place circumstances. It must be something more than trifling and be sufficient to warrant the law
63
What are the penalties for sexual conduct with a young person under 16 section 134
(1) 10 years
(2) 10 years
(3) 7 years
64
What are the two defences to a charge of sexual conduct with a young person under 16
Marriage at the time of the conduct
If the young person is under 16 and the offender if over 16 the young person can't be a party to the offence s
65
Can two young people under 16 be charged as parties to the offence of sexual conduct with a young person
If two 15 year olds are having sex they can be charged as parties to the offence but in real life it wouldn't meet the solicitor generals guidelines
66
What is the defence to a charge under 134 (134A)
Person charged proves that;
-before the act they had taken reasonable steps to find out whether the young person was over 16 AND
-At the time of the act they believed on reasonable grounds that the young person was over 16 AND
-The young person consented
67
What are not defences for charges under section 134
Person charged believed the young person was over 16
The young person consented
68
What must the defendant show as far as the reasonable steps they took to ascertain the victims age?
They must show the steps they took and satisfy the court that these steps were all that could be reasonably required of them in the circumstances
The wider the age maturity gap the harder this will be to prove
69
Section 135
Indecent Assault
A person.
Indecently assaults
Another person
70
R v leeson
Definition of indecent assault is an assault accompanied by circumstances of indecency
71
What must the Crown prove in cases of indecent assault
-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
72
If the issue of consent is raised for a case of indecent assault what are the extra two elements prosecution must prove beyond reasonable doubt?
The complainant did not consent AND
the defendant did not honestly believe the complainant was consenting
73
What is the difference in belief in consent between sexual violation and indecent assault
-sexual violation an honest belief is not sufficient unless there are reasonable grounds
-indecent assault an honest belief is sufficient even if it's not reasonable
74
Define indecent act
An act accompanied by circumstances of indecency
Usually consensual acts.
In age specific sexual offences it includes indecent assault
75
Section 130(1)
Incest
A person
Has sexual connection
With parent and child or siblings, half siblings or grandparent and grandchild
And the person charged knew of the relationship
76
What is the penalty of incest?
10 years
77
What is consent in cases of incest?
Sexual connection in incest is carried out with consent of BOTH parties
78
What is covered under 'parent' in relation to incest?
Birth parents and includes adoptive parents, the spouse of the adoptive parents does not include parent
Does not include step parent
79
What is the age limit for incest?
16 years and over
80
Section 131(1)
Sexual conduct with a dependent family member
-A person
-has sexual connection
-with a dependant family member
-under the age of 18
81
What is the age limit for the complainant for sexual conduct with dependent family member
Under 18 years
82
What is included in dependent family member?
Someone who has power or authority over the other person AND IS:
-Parent
-Step Parent
-Foster Parent
-Guardian
-Uncle
-Aunt
-Grand Parent
-A child of his or her step parent
-Spouse or defacto partner of any of the above
83
What are the ingredients of meeting you g person following sexual grooming?
Having met or communicated with a person under 16 years on an earlier occasion he or she takes one of the following actions;
-intentionally meets the young person
-travels with the intention of meeting the young person
-arranges for or persuades the young person to travel with the intention of meeting him or her AND
her or she intends to commit an offence
84
What is a defence for 131B, grooming etc
Before they took the action concerned they had taken reasonable steps to find out whether the young person was over 16 AND
at the time the action occured the offender believed on reasonable grounds that the young person was over 16
85
When a constable pretends to be a young person (to be groomed) what must the Crown prove?
When taking the actions in subsection 1 the offender believed the fictitious young person was a young person under 16
86
What are the two main ingredients to sexual exploitation of person with significant impairment
Has sexual connection OR does indecent act on the impaired person knowing that person is significantly impaired AND
has obtained the impaired person's acquiescence in, submission to, participation in or undertaking of the connection by taking advantage of the impairment
87
What are the three offences with animals?
Compels indecent act with animal (not penetration) 14years
Beastiality (complete upon penetration) 7 years
Indecency with animal
3 years
88
What does section 144A (sexual conduct with YP and children outside NZ) apply to?
Offences committed by a NZ citizen or ordinarily NZ resident under section 132 or 134
Or under age (18 years) prostitution
89
Who's permission do you need to file charging docs for sexual conduct YP and child outside nz
Attorney general
90
What qualifies as organising or promoting child sex tours? 144A
Makes or organises any travel arrangements for or on behalf of any other person with the intention of facilitating the commission of an offence under 144A whether or not the offence is actually committed
-transports any other person to a place outside of NZ with the intention of facilitating the an offence under section 144A
-prints or publishes any information that is intended to promote conduct that would constitute an offence under section 144A
91
Under section 144C what are two examples of organising travel arrangements
Purchase or reservation of tickets to travel to a country outside NZ
Purchase or reserve accommodation outside of NZ
92
Under section 144C what is the definition of publication of information?
Publication of information by any means, written, electronic, or other form of communication and includes distribution of information
93
What is required to be proven for a charge of prohibition on making intimate visual recording
Intentionally or recklessly makes an intimate visual recording of another person,
-no consent of the other person
94
What is section 44 of the Evidence Act?
No evidence of questions can be put to the witness or complainant about the complainants sexual experience other than with the defendant except with the permission of the judge
Section 44(1) is subject to the propensity rule in section 40(3). Evidence of the complainants propensity to act in a certain way with the defendant including sexually, may be offered as evidence but only if the judge grants permission
95
When applying section 44 of the evidence act when can the judge grant permission?
When satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding or the issue of appropriate sentence that it would be contrary to the interests of justice to exclude it
96
What is section 87 of the evidence act?
Protects a witness from having to state their address and having questions about that information. Also Includes the name of the town or community they lived in.
If they judge determines they're relevant they can be included
97
What is section 88 of the evidence act ?
Restriction of disclosure of the complainants occupation in sexual cases
98
What is section 121 EA?
In any criminal proceeding the complainants evidence does not have to be corroborated. It's especially important in sexual cases
99
Under section 121 what are the exceptions to the rule?
Offences of;
Perjury
False oaths
False statements or declarations
Treason
100
What is the benefit of having someone level 3 interviewed?
They use enhanced cognitive interview techniques to maximize the quality and quantity of information obtained from cooperative witnesses
101
What are the advantages of visually recorded interviews?
-greater quality and quantity of information
-minimising trauma to the witness by simplifying the process and having their interview played as evidence in chief
-reducing contamination by the interviewer
-providing a valuable means for the witness to refresh their memory before judicial proceedings
102
What do you do when a specialist interviewer is not available?
An NCO can authorise a suitably competent investigator to conduct a d visually record the interview. Preference should be given to those trained in level 2 and then 1
103
What is the age of a child in the evidence act?
Under 18 years of age
104
List three grounds which a direction can be made under 103(3) of EA in regards to a witness giving evidence in an alternate way?
-age or maturity of the witness
-trauma suffered by the witness
-witness fear of intimidation
-nature of the proceeding
105
What are the requirements under reg 28 of Evidence regulations 2007?
Typed transcript of a working copy is given to the defendant or their lawyer asap after the defendant pleads NG
Transcript is prepared by the police.
Court can adjourn the hearing to allow the defendant further time to consider that subclause 1 was complied with
106
What are three ways under section 105 can a witness give evidence
Screens
Via video link from another courtroom
A video made before the hearing
107
For a charge of Ill-treatment or neglect of a child or vulnerable adult how old is a child?
Under 18 years of age
108
What are the things a child or vulnerable adult must be at risk of for a charge of failure to protect
Risk of death, gbh or sexual assaults
109
Who does a charge of failure to protect a child or vulnerable person apply to?
Members of the same household as the victim
Staff members of any hospital, institution or residence where the victim resides
110
What is the mens Rea and Actus Reus for failure to protect child
Men's rea: knows the victim is at risk of death, gbh or sexual assaults
Actus Reas: fails to take reasonable steps to protect the victim from the above
111
How do you establish if the person is a member of the household (failure to protect a child)
Depends on the frequency and duration of visits, familial relationship to victim and any thing else relevant
112
What is required to be proven for a charge of failure to protect a child
-victim under 18
-defendant over 18
-had frequent contact with the victim being a member of their household or staff in a hospital or institution
-defendant had knowledge of the risk of harm to the child
113
For a charge of failure to protect a child, who decides of the defendants contact was frequent enough?
The jury
114
What are the two main priorities in an ASA investigation
Undertaking the investigation as quickly as possible
Meeting the complainants physical and emotional needs
115
What is the 12 step process for an ASA investigation
1. Initial action and contact
2. Case referral
3. Specialist support
4. Prelim interview
5. Information 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 and responsibilities
116
List four things the victim should refrain from doing before undergoing a medsac
Showering
Brushing their teeth
Drinking
Changing clothing
Eating
Smoking
117
List the points you explain to the victim before the medsac?
A specially trained doctor will do the exam
Benefits of the exam are for their health and safety and can obtain evidence
Expected time frame of examination
They can say no to any aspect of the examination, it's all up to them
118
How should you conduct yourself when dealing with ASA victims?
CALMTEA
C- conduct your dealings in a sensitive and concerned manner
A- Accept they are telling the truth until otherwise proven
L- Listen
M - Medical attention
T - Treat them courteously
E - Explain the process you are following and why
A - Advise them of local counselling services
119
What are the three things to consider when determining if physical abuse is serious enough for a CPP case?
Action of the abuse
Injury inflicted
The circumstances
120
List four responsibilities of police for victims rights?
-All obligations under the victims rights act 2002 must be met and all contacts recorded
-information on the case progress must be given within 21 days
-must be informed about the outcome of their case and all property returned promptly
-must be informed of the outcome including if no charges are filed etc
121
Define child abuse?
Defined in children young person and their families act 1989 as the harming (physically, emotionally, or sexually) Ill-treatment, abuse, neglect, or depravation of any child or young person
122
What is a child centered time frame?
Timeframe relative to the childs age and cognitive development. One week is a long time for a five year old to recall information however it would be easy for a 16 year old
123
What is the question when the victim was affected by drugs or alcohol?
Whether they were affected to such an extent that they were incapable of understanding the situation a s giving rational or reasoned consent
124
What must the crown prove in relation to an Attempted sexual violation
Intended to have sexual connection with the complainant AND
There was no consent from the complainant for the intended act
The defendant did not believe on reasonable grounds that the complainant was consenting
125
Who checks the SCWI transcript?
The interviewer, against the tape for accuracy and acknowledge in their brief of evidence that this has occured
126
What is the previous consistent statement rule?
-a previous inconsistent statement of the witness OR
-a claim that the witness recently invented evidence
I.e. a rape complainants veracity is challenged, then previous statement from another witness is admissible
127
What do you do after a SCWI is completed?
RUDEM
-Review the impact of info disclosed
-Update CFY on information discussed
-Discuss any protection concerns
-Ensure safety of the child
-May need to adjust IJIP
128
What is significant impairment?
Affects the person to such an extent it significantly impairs the person's capacity to:
-understand the nature of the sexual conduct
-understand the decisions about sexual conduct
-to foresee the consequences of decisions about sexual conduct
-communicate the decisions about sexual conduct
129
What are the age limits for cp and asa investigations
ASA - 18 years or older at the time.of reporting
CP - 17 and under at time of reporting
130
What are time time frames for ASA complaints?
Acute - within 7 days
Non Acute - 7 days or more after sexual assault
Historic - 6 months or more
131
In the prelim interview what should you do?
Get a brief outline of facts
Consider victim and public safety
Potential loss of evidence
medical circumstances
Suspects likely actions
132
What is an IJIP
Initial joint investigation plan
133
What are examples of physical child abuse?
Blow Or kick to the head
Shaking a baby
Strangulation
Attempted drowning
Bone fracture
Burn
Injury that requires medical attention
134
When can you remove a child?
If left they will suffer or are likely to suffer Ill-treatment, neglect, deprivation, abuse or harm AND
There are no other practical means of ensuring their safety
135
What are the kinds of threats referred to in sexual conduct induced by certain threats?
-a threat that the person making the threat will commit an imprisonable offence but does not involve actual or threatened application of force AND
The threat made is that someone will make a disclosure or accusation about misconduct by any person that is likely to seriously damage the reputation of the person who the disclosure or accusation is made AND
-a threat that the person making the threat will make improper use of, to the detrement of the person the threat is against , of a power of authority arising out of
-an occupational or vocational position
-a commercial relationship between the parties
