Sex Module Flashcards
Section and elements of Sexual Violation By Rape
s128(1)(a) Crimes Act
- A person
- Rapes
- Another Person
Section and elements of Sexual Violation By Unlawful Sexual Connection
s128(1)(b) Crimes Act
- A person
- Has unlawful sexual connection
- With another person
Section and elements of Assault with Intent to Commit Sexual Violation
s129(2) Crimes Act
- A person
- Assaults
- Another Person
- With intent to commit sexual violation of the other person
Section and elements of Sexual Conduct with a Child under 12
s132 Crimes Act
- A person
(1) Has sexual connection with a child
(2) Attempts to have sexual connection with a child
(3) Does an indecent act on a child
Section and elements of Sexual Conduct with a Young Person Under 16
s134 Crimes Act
- A person
(1) Has sexual connection with a young person
(2) Attempts to have sexual connection with a young person
(3) Does an indecent act on a young person
Section and elements if indecent assault
s135 Crimes Act
- A person
- Indecently assaults
- Another person
Genitalia case law
R v Koroheke: The genitalia comprise the reproductive organs, interior and exterior… they include the vulva and labia, both interior and exterior, at the opening of the vagina
Indecency case law
R v Court: Conduct that right thinking people will consider an affront to the sexual modesty of the complainant
R v Dunn: 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
Define R v Forrest & Forrest
Age: The best evidence possible in the circumstances should be adducced by the prosecution in proof of the Victims age
Indecent assault case law
R v Lesson: assault accompanied by circumstances of indecency
R v Norris
Indecent assault defence: If a person charged with indecent assault can establish they honestly believed the complainant was consenting, they are entitled to acquittal even if the grounds for belief were unreasonable
R v Collister
Intent factors:
- offenders actions and words before, during and after the event
- surrounding circumstances
- nature of the act itself
Name and section of all liability sex offences
- Sexual Violation By Rape
- Sexual Violation By unlawful sexual connection
- Assault with intent to commit sexual violation
- Incest
- Sexual conduct with a dependant family member
- sexual conduct with a child under 12
- sexual conduct with a young person under 16
- Indecent assault
Sexual connection
(a) Connection effected by the introduction into the genitalia or anus of one person, other than for genuine medical purposes,
(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 genitalia or anus, or
(c) the continuation of either of the above
Define rape
Sexual connection effected by penetration of the complaints genitalia by the Defendants penis:
(a) without consent to the connection and
(b) without believing on reasonable grounds that the complaint consented to the connection
Penetration
Affected by the slightest degree is sufficient
Prove person
Accepted by judicial notice or proved by circumstantial evidence
Define consent
Conscious and voluntary agreement
Unlawful sexual connection
Sexual connection without the complainants consent to the connection and without believing on reasonable grounds the complainant consents to the connection
Assault
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 threats has, or cause the other to believe on reasonable grounds they have, present ability to effect their purpose
What is intent?
Must involve intent to commitnthe full offence and get a specific result
Intent case law
R v Collister: intent can be established by:
- actions or words by the offender before during or after the incident
- the nature of thr act itself
- surrounding circumstances
Attempt definition
Has intent to commit the full offence and takes a real/substantial step towards that aim
Attempt case law
R v Harpur: an attempt is an act or omission constituting a substantial step in a course of conduct planned to culminate in the commission of the crime
AND
Acts that viewed independently would be preparatory, viewed collectively could amount to an attempt
Section and elements of Incest
s130 Crimes Act 1961
- A person
- has sexual connection
- With parent and child or siblings or half-sibling or grandparents and grandchild
- and the person charged knows of the relationship
For incest who is a “parent”
Biological, half and adopted parents but not step parents
What age must a victim be to charge for incest
Over 16 (as under this you would use s134 or s132 for consensual sexual relationships)
For incest, what must you prove on top of the basic elements?
Their age (16 and over) and that both parties consented to the sexual connection
Sexual conduct with a dependent family member section and elements
s131(1) Crimes Act 1961
- A person
- Has sexual connection
- with a dependant family member
- under the age of 18
Discuss s131(1) vs s128
s131(1) is Sexual Conduct with a dependent family member. It requires some degree of consent although consent is not a defence. If there was no consent it’d be s128, which covers sexual violation
What do you need on top of the elements for section 131(1)
Sexual Conduct with a dependant family member required the Victim be 16-17 years old and consenting (although this is not a defence)
Define dependant family member
- Has power and authority over the victim and is a parent (any kind), aunt or uncle, OR a “grand” any of these or the spouse/defacto partner of these
-In the same family group as the Victim and has responsibility for them or a significant role in their upbringing - lives with the Victim and has power/authority over them and a significant role in their upbringing
Define indecent act
An act accompanied by circumstances of indecency
Key case law for sexual connection
R v Koroheke - defining genitalia
R v Cox - outlines consent which differentiates between s 128 and other sections
Discuss defences for s132
Sexual conduct with a child under 12 offence. It is not a defence that the suspect believed the child was over 12
Discuss defences for s134
Sexual conduct with a young person under 16 defences include:
- the offender is married to the Victim at the time of the offence
- the Victim consented + the offender took reasonable steps to find out the Victims age + offender believed on reasonable grounds the young person was over 16
Can you charge offenders under 16 with s134?
Technically yes, but in reality, you’d apply the solicitor general guidelines
What age does indecent assault (s135) apply to?
16 and over. Otherwise it’d be s132 or s134
Discuss the key points for Sexual Conduct with Consent Induced by Certain threats
Covers non-forceful threats used to get sexual connection such as:
- Threats to commit an inprisonable offence not involving force
- Threats to disclose bad-reputational disclosures about the Victim
- Misuse of position of power or authority
Describe Meeting Young Person Following Sexual Grooming offence
Having previously met or communicated with a young person and with intent to commit any sexual offence or sexual exploitation offence against them:
- intentionally meets them
- Travels with intent to meet them
- arranges or persuades the young person to travel to meet them
Who is a young person for sexual Grooming offence
Anyone under 16 or a Constable pretending to be such a young person
Is there a defence to sexual Grooming?
Yes. The accused must prove they took reasonable steps to find out the young person was 16+ and at the time they believed on reasonable grounds the young person was 16+
Where must the offender commit a sexual Grooming offence to be liable under NZ law?
Anywhere so long as either the accused or complainant are NZ residents or citizens
Describe offence of Sexual Exploitation of a person with significant impairment
Offence to have exploitative sexual connection with person with a significant impairment
Define exploitative sexual connection for s138
The offender needs to know the Victim has a significant impairment and obtain the Victims acquiesce/participation by taking advantage of that impairment
Define significant impairment for s138
Can be intellectual, mental or physical and effects them such that:
- they can’t understand the nature of sexual conduct
- they can’t understand the nature of decisions for sexual conduct
- it impairs their ability to forsee consequences of sexual conduct
- impairs their ability to communicate decisions about sexual conduct
Identify the main animal related sexual offences
- Compelling indecent act with animal (forcing someone else by force or threats to do the indecent act)
- Indecency with an animal
- Beastiality (requires penetration)
Discuss intimate recordings
Prohibits intimate recordings without the other’s consent, either intentionally or recklessly. Must make the recording and it is of a intimate nature.
This is considered child abuse if the victim is a child.
Discuss child/YP sexual offences or planned such offences outside of NZ
It is an offence to commit a s132 or s134 outside NZ if you are a NZ resident/citizen.
Also an offence to organise such offending overseas (known as sex tours)
Define s44 of the Evidence Act
Need a judge’s permission to question a witness is a sexual case about their sexual experience.
The judge must only grant permission if excluding it would be contrary to the interests of justice
Can questions be put to the witness in a sexual matter about their sexual reputation?
No
Define section 87 Evidence Act
Witness in sexual matters need not state their address or have questions put to them about it.
Includes number and street, but also town and community.
The judge may overrule if it is so directly relevant to the facts in issue that excluding it would be contrary to the interests of justice
s88 of Evidence Act
Witness in sexual matters need not disclose or be questioned about their occupation.
Judge can overrule if it is of sufficient relevance to the facts in issue and excluding would be contrary to the interests of justice.
s121 Evidence Act
Complainant evidence (statememt) need not have corroborating evidence
Discuss the admissibility of previous statements by a witness
Largely only admissible as rebuttal evidence when the veracity/accuracy of the witness is challenged.
Can also be admissible when it is reliable and it has evidence the witness is unable to recall.
Note: Once submitted for either of these reasons, the statement can be used to prove ANYTHING of consequence in the proceeding
Who can take a Victim Video Statememt for sexual matters?
A level 3 specialist interviewer or, with NCO approval, an appropriately competent investigators
What are the advantages of a Victim Video Statement?
- Can be used as evidence in chief
- Less stress and trauma
- Improves quality of evidence and prevents translation or recording issues
What is the preferred statement method by the court for child complainants and what is the relevant legislative section?
Video statements as covered in s107 which states a child witness is entitled to give evidence by alternative means
What alternative means of giving evidence exist and what section outlines them?
- Video statements
- Screens
- Live video link
s105
Discuss s103 Evidence Act
Outlines the process to apply to the court to give evidence by alternative means and outlines various relevant factors
Who must prepare the transcript for a victim video statement in child complaint matters?
The O/C and checked by a specialist child witness interviewer
What must you tell complainants about giving alternative evidence?
That the Police must apply to give evidence by alternative means and each application is assessed on its merits
Discuss the definition of Victim
Always includes:
- Someone an offence committed against
- Someone who suffers injury, loss or damage from offending
- Parent of either of the above if they’re a young person
- Immediate family of a Victim that is killed or made incapable
For s7 and s8 it also includes those that suffer emotional harm and children of domestic victim’s
Define the different ASA reporting time lines
Acute: Within 7 days
Non-acute: 7 days - 6 months
Historic: over 6 months
Discuss initial actions on contact in a ASA investigation
Obtain brief details, but only enough to allow initial action planning (e.g. what, when, where, who).
Consider immediate health and safety concerns and evidence capture
Do you need Victim consent to connect them to support?
Yes. If they decline you should encourage it and offer at all subsequent meeting
Discuss key points when obtaining a preliminary interview in a ASA investigation
Must be done by CIB unless supervisor appoves otherwise.
Do it in a place where they feel safe and ensure support has been offered.
Key points is obtaining brief facts while ensuring Victim and public safety, and evidence capture.
Use TEDS and where/when/what/who questions (NOT why/how) to obtain brief details for safety planning and ensuring evidence capture.
Consider immediate photographs and seizing clothing.
Define s11 and s 12 of the Victims Rights Act
s11 - advise Victim of remedies and programs offered by the Police
s12 - keep Victim updated about investigation and proceedings
What is the pricemary and secondary objective of a medical examination
Primary: victim’s physical, sexual and mental health and safety
Secondary: collect trace evidence
Discuss how the time line of reporting affects a medical examination
Discuss with the practitioner.
For acute cases it must be organized ASAP. Less important after 3-4 days.
For non-acute always refer for health reasons and for historic it is recommended.
Who can file an ASA case?
Only a level 4 ASA-accredited (Crime manager approved) supervisor can file ASA cases
What are the 3 main child abuse offences?
- Assault child
- Ill-treatment/neglect of a child or vulnerable adult
- Failure to protect child or vulnerable adult
Discuss “anti-smaking” enforcement
Police retain discretion to not prosecute where the offence is so inconsequential that there is no public interest
Define the offence of Ill-treatment/neglect of child or vulnerable adult
Offender must have charge/care over the victim (includes staff at institutions) and a child includes all those under 18.
They must perform an act, or omission of their legal duty, which is a major departure from the standard of care expected and is likely to cause suffering, health effects, mental disorder or disability.
Discuss the offence of failure to protect child or vulnerable adult
Offence is to know the Victim is at risk of death, GBH or sexual assault and failing to take reasonable steps to prevent that risk.
Offender must have frequent contact with the Victim and be a member of their household.
To be a member of the household the offender need not live there, just be closely connected.
What approach is used for historic child complaints?
ASA policy and procedure however referral to OT may still be required if other children are at risk
Define child abuse
Harming (physical, sexual or emotional), I’ll treatment, abuse, neglect and deprivation
What is emotional abuse?
Causes severe and persistent effects on emotional development
Define neglect
Likely to cause bodily harm, mental disorder or disability
What is the first step when a ROC received?
Obtain details required to enable a safety risk assessment and determine immediate actions
What must all ROC cases be recorded as in NIA
6C.
Still required even if a separate offence code it used.
Discuss child removal options
s42 - removal without warrant if it is critically necessary to prevent injury or death
s39- Place of safety warrant which can remove child if you believe child abuse is likely
s40- warrant to remove gor care and protection reasons
Who must interview child abuse victims or child witnesses to serious crime?
Specialist child witness interviewer
Discuss timing of child medical examinations
Done on a child-centered time frame.
Consult with the medical practitioner about this.
Use ASA approach for sexual offending.
For acute physical abuse get a medical done ASAP.
Key intent case law
R v Collister
Key attempts case law
R v Harpur
Key sexual violation case law and points
R v Koroheke
R v Cox
R v Gutuama
S128A defences
What the crown must prove (objective/subjective test)
Discuss incest vs sexual conduct with dependant family member
Incest has very specific relationships (parent/child, sibling, half sibling and grandparent/grandchild).
If a different relationship like and aunt etc, consider s 131(1).
Incest applies to victims 16+ where as dependant family member only applies to age 16-17
