Sex definitions

Question 1

Sexual connection defined

Answer 1

Sexual connection
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)

Question 2

Introduction into / penetration

Answer 2

Introduction into / penetration

The legislation uses the term “introduction into” in the definition of sexual connection, and “penetration” in the definition of rape.

In practice there is no difference, and it is not necessary to differentiate between the two terms.

Question 3

Slightest degree of penetration is sufficient

Answer 3

Slightest degree of penetration is sufficient

Section 2, Crimes Act 1961
Interpretation

(1A) 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.

So, while under paragraph (a) penetration of the genitalia or anus must be proved, the extent of penetration is not relevant; any degree of penetration, no matter how slight or fleeting, is sufficient.

Question 4

Proving penetration

Answer 4

Proof of penetration may be established by:

• the complainant’s evidence
• medical examination, including physical injuries and DNA evidence
• the defendant’s admissions

Question 5

Genitalia

Answer 5

Genitalia
Section 2, Crimes Act 1961
Interpretation

Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female, or of indeterminate sex)

Question 6

Penis

Answer 6

Penis
Section 2, Crimes Act 1961
Interpretation

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

Where the offender penetrates the complainant’s genitalia with his penis, the charge will be one of rape under s128(2). Given the wide definition, anybody with a penis is therefore capable of committing rape, irrespective of their biological gender.

Question 7

Anus

Answer 7

The anus is not included within the definition of genitalia, and therefore non-consensual penile penetration of the anus is not rape.

The appropriate charge would be one of sexual violation by unlawful sexual connection under s128(1)(b).

Question 8

Objects held / manipulated

Answer 8

This provision applies to anything, other than a part of his body, used by the offender to penetrate the complainant’s genitalia or anus - for example, a vibrator, a deodorant bottle or other hand-held objects.

Question 9

Genuine medical purposes

Answer 9

Some medical procedures (such as cervical screening and prostate examination) involve penetration of a patient’s genitalia or anus by a doctor. Provided this is done for genuine medical purposes, such penetration is excluded from the definition of sexual connection.

Note, however that if a doctor penetrates a patient on the pretence of medical necessity, when it is actually for sexual gratification, it may amount to sexual violation.

Question 10

Mouth or tongue

Answer 10

Mouth or tongue

In the case of oral sexual connection it is not necessary for there to be penetration; any touching of a person’s genitalia or anus with another person’s mouth or tongue is sufficient.

Question 11

Continuation

Answer 11

Continuation

The definition of sexual connection includes the “continuation” of such acts, capturing situations where sexual activity is started consensually, but consent is later withdrawn.

There is an obligation on a person to stop sexual activity at the point he realises the other person is, no longer willing - failure to do so may render a previously consensual act unlawful.

Question 12

No presumption because of age

Answer 12

No presumption because of age
Section 127, Crimes Act 1961

There is no presumption of law that a person is incapable of sexual connection because of his or her age.

This provision means that any person of any age is capable, in a legal sense, of being involved in sexual connection.

Therefore 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 sexual connection.

Question 13

Invalid consent (1)

Answer 13

Allowing sexual activity does not amount to consent in some circumstances
Section 128A, Crimes Act 1961

(1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.

Question 14

Person A - the offender

Answer 14

The legislation defines rape in terms of Person A (the offender) who rapes Person B (the complainant).

The fact that the offender is a person is generally accepted by judicial notice or proved by circumstantial evidence.

Question 15

Assault defined

Answer 15

Assault defined
Section 2 Crimes Act 1961

Assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose.

Question 16

Child defined

Answer 16

Child
Section 132, Crimes Act 1961
Sexual conduct with a child under 12

(6) In this section -
(a) child means a person under the age of 12 years and
(b) doing an indecent act on a child includes indecently assaulting the child.

Question 17

Young person

Answer 17

Young person defined
Section 134, Crimes Act 1961
Sexual conduct with a young person under 16

(6) In this section, -
young person means a person under the age of 16 years and doing an indecent act on a young person includes indecently assaulting the young person.

Question 18

Statutory defence under section 134

Answer 18

Defence to charge under section 134
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.
(2) Except to the extent provided in subsection (1), -
(a) it is not a defence to a charge under section 134 that the young person concerned consented; and
(b) It is not a defence to a charge under section 134 that the person charged believed that the young person concerned was of or over the age of 16 years.

Question 19

Dependent family member defined

Answer 19

Dependent family member defined
Section 131A, Crimes Act 1961

(1) 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.

In subsection (1), -

aunt, in relation to a person, includes a half-sister of one of the person’s parents

foster parent includes a former foster parent

guardian -

(a) means guardian by virtue of the Guardianship Act 1968 or the Children, Young Persons, and Their Families Act 1989; and
(b) includes a former guardian

step-parent includes a former step-parent

uncle, in relation to a person, includes a half-brother of one of the person’s parents.

Question 20

Evidence of sexual experience of complainants in sexual cases

Answer 20

Evidence of sexual experience of complainants in sexual cases
Section 44,Evidence Act 2006

(1) In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.
(2) In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.
(3) In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.
(4) The permission of the Judge is not required to rebut or contradict evidence given under subsection (1).
(5) In a sexual case in which the defendant is charged as a party and cannot be convicted unless it is shown that another person committed a sexual offence against the complainant, subsection (1) does not apply to any evidence given, or any question put, that relates directly or indirectly to the sexual experience of the complainant with that other person.
(6) This section does not authorise evidence to be given or any question to be put that could not be given or put apart from this section.

Question 21

Privacy as to witness’s precise address

Answer 21

Privacy as to witness’s precise address
Section 87, Evidence Act 2006

(1) In any proceeding the precise particulars of a witness’s address (for example, details of the street and number) may not, without the permission of the Judge, be -
(a) the subject of any question to a witness or included in any evidence given; or
(b) included in any statement or remark made by a witness, lawyer, officer of the court, or any other person.
(2) The Judge must not grant permission under subsection (1) unless satisfied that the question to be put, the evidence to be given, or the statement or remark to be made, is of sufficient direct relevance to the facts in issue that to exclude it would be contrary to the interests of justice.
(3) An application for permission under subsection (1) may be made before or after the commencement of any hearing, and is, where practicable, to be made and dealt with in chambers.
(4) Nothing in subsection (1) applies in a criminal proceeding if it is necessary to disclose the particulars in the charge in order to ensure that the defendant is fully and fairly informed of the charge.

Question 22

Restriction on disclosure of complainant’s occupation in sexual cases

Answer 22

Restriction on disclosure of complainant’s occupation in sexual cases
Section 88, Evidence Act 2006

(1) In sexual case, except with the permission of the Judge, -
(a) no question may be put to the complainant or any other witness, and no evidence may be given, concerning the complainant’s occupation; and
(b) no statement or remark may be made in court by a witness, lawyer, officer of the court, or any other person involved in the proceeding concerning the complainant’s occupation.
(2) The Judge must not grant permission under subsection (1) unless satisfied that the question to be put, the evidence to be given, or the statement or remark to be made, is of sufficient direct relevance to the facts in issue that to exclude it would be contrary to the interests of justice.
(3) An application for permission under subsection (1) may be made before or after the commencement of any hearing, and is, where practicable, to be made and dealt with in chambers.

Question 23

Corroboration

Answer 23

Corroboration
Section 121, Evidence Act 2006

(1) It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated, except with respect to the offences of -
(a) perjury (section 108 of the Crimes Act 1961); and
(b) false oaths (section 110 of the Crimes Act 1961); and
(c) false statements or declarations (section 111 of the Crimes Act 1961); and
(d) treason (section 73 of the Crimes Act 1961).
(2) Subject to subsection (1) and section 122, if in a criminal proceeding there is a jury, it is not necessary for the Judge to -
(a) warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect; or
(b) give a direction relating to the absence of corroboration.

Question 24

Previous consistent statements rule

Answer 24

Previous consistent statements rule
Section 35, Evidence Act 2006

(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.
(3) A previous statement of a witness that is consistent with the witness’s evidence is admissible if -
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall.

Question 25

Parental control defined

Answer 25

Parental control
Section 59(1)(4), Crimes Act 1961
Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of—
(a) preventing or minimising harm to the child or another person; or
(b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
(c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or
(d) performing the normal daily tasks that are incidental to good care and parenting.

To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.

Question 26

Consent is no defence

Answer 26

Sexual conduct with child under 12
Section 132(5), Crimes Act 1961

(5) It is not a defence to a charge under this section that the child consented.

Even in the unlikely event that a child’s consent is sufficient to provide a defence to sexual violation, that consent is no defence to a charge of sexual conduct with a child under 12.

Question 27

Mistake as to age no defence

Answer 27

Sexual conduct with child under 12
Section 132(4), Crimes Act 1961

(4) It is not a defence to a charge under this section that the person charged believed that the child was of or over the age of 12 years.

Question 28

Invalid consent (2)(a) or (b) or (c)

Answer 28

Allowing sexual activity does not amount to consent in some circumstances
Section 128A, Crimes Act 1961

(2) A person does not consent to sexual activity if he or she allows the activity because of -
(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 some other person; or
(c) the fear of the application of force to him or her or some other person.

Question 29

Invalid consent (3)

Answer 29

Allowing sexual activity does not amount to consent in some circumstances
Section 128A, Crimes Act 1961

(3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.

Question 30

Invalid consent (4)

Answer 30

Allowing sexual activity does not amount to consent in some circumstances
Section 128A, Crimes Act 1961

(4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.

Question 31

Invalid consent (5)

Answer 31

Allowing sexual activity does not amount to consent in some circumstances
Section 128A, Crimes Act 1961

(5) A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.

Question 32

Invalid consent (6)

Answer 32

Allowing sexual activity does not amount to consent in some circumstances
Section 128A, Crimes Act 1961

(6) One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.

Question 33

Invalid consent (7)

Answer 33

Allowing sexual activity does not amount to consent in some circumstances
Section 128A, Crimes Act 1961

(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.

Question 34

Invalid consent (8)

Answer 34

Allowing sexual activity does not amount to consent in some circumstances
Section 128A, Crimes Act 1961

(8) This section does not limit the circumstances in which a person does not consent to sexual activity.

Question 35

Invalid consent (9)(a) or (b)

Answer 35

Allowing sexual activity does not amount to consent in some circumstances
Section 128A, Crimes Act 1961

(9) For the purposes of this section -

allows includes acquiesces in, submits to, participates in, and undertakes sexual activity, in relation to a person, means -

(a) sexual connection with the person; or
(b) the doing on the person of an indecent act that, without the person’s consent, would be an indecent assault of the person.

This section specifies various matters that do not constitute consent to “sexual activity”, without limiting the circumstances in which there is no consent: subsection (8). It extends to any “sexual activity” that, in the absence of consent, would constitute an indecent assault: subsection (9).