Sex Module Study

Question 1

What is the difference between Rape and Unlawful Sexual Connection

Answer 1

Rape is a specific form of non-consensual sexual connection involving the penetration of the complainant’s genitalia by the defendant’s penis.

Sexual connection has a wider meaning and covers non-consensual penetration or oral connection the the genitalia or anus.

Question 2

What 3 things must the crown prove in sexual violation cases?

Answer 2

1) The complainant did not consent to the connection (subjective) AND
2) The defendant knew the complainant was not consenting to the connection (subjective) OR
3) If the defendant did believe the complainant consented to the connection, the grounds for such belief were not reasonable (objective)

Question 3

Section 128A Crimes Act 1961 - Matters that do not constitute consent?

Answer 3

A person does not consent to sexual activity if:

1) They do not protest or offer physical resistance
2) Force applied to him/her or some other person, the threat of force (implied/expressed) applied to him/her or some other person, the fear of the application of force to him/her or some other person.
3) Asleep/Unconscious
4) So affected by alcohol/drugs unable to consent
5) Affected by intellectual, physical, psychological or mental impairment.
6) Mistaken about the identity of the defendant
7) Mistaken about the nature/quality of the act

Question 4

Section 129(1) Crimes Act 1961 -

Answer 4

Attempted sexual violation

Question 5

Section 129(2) Crimes Act 1961 -

Answer 5

Assault with intent to commit sexual violation

Question 6

What is the difference between Sections 129(1) and 129(2) Crimes Act 1961?

Answer 6

(1) Attempted Sexual Violation - There need not be an assault but the act needs to be sufficiently proximate to the full offence of sexual violation.
(2) An assault has to have occurred and the defendant had the necessary intent to commit the act of sexual violation at the time of the assault but need not be sufficient proximate to the full offence of sexual violation.

Question 7

What must the crown prove in relation to ‘attempted sexual violation’ and ‘assault with intent to commit sexual violation’?

Answer 7

1) Must prove that the defendant intended to commit the full offence of sexual violation AND
2) The complainant did not consent to the intended sexual connection AND
3) The defendant did not believe on reasonable grounds that the complainant was consenting.

Question 8

Sexual connection with a child - Can a child consent to sexual connection?

Answer 8

A child under 12 years can in “rare and exceptional circumstances” give legal consent to sexual connection.

In this instance an alternate charge of Sexual Conduct with a child under 12 - Section 132 CA ‘61 will apply because consent is no defence to that charge.

Question 9

Indecent - definition

Answer 9

An act that is indecent has sexual connotations and involves conduct that is directed at a person that is offensive to the public moral values.

Question 10

R v Court - Indecency

Answer 10

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

Question 11

What is the statutory defence under Section 134 of the Crimes Act 1961?

Answer 11

If the defendant proves that before the sexual activity occurred they:

1) Took reasonable steps to determine the young person was at least 16 years old AND
2) At the time of the sexual activity they believed on reasonable grounds that the young person was at least 16 years old AND
3) The young person consented.

Question 12

R v Leeson - Indecency

Answer 12

Indecent assault is an assault accompanied with circumstances of indecency.

Question 13

What are the 3 things the crown must prove for indecent assault?

Answer 13

1) The defendant intentionally assaulted the complainant.
2) The circumstances accompanying the assault were indecent.
3) The defendant intended the conduct that a reasonable person would find indecent.

Question 14

Section 129A(5) Crimes Act 1961 - Sexual conduct with consent induced by certain threats.

Answer 14

Kind of threats:

The person making the threat, or some other person will-

1) Commit an offence punishable by imprisonment (not including threats of assault/application of force)
2) Make an accusation or disclosure whether true or false about misconduct by any person living or dead that is likely to damage the reputation of that person.
3) The person making the threat will use to the detriment of the person consenting their power or authority gained from their occupation or commercial relationship with the complainant.

Question 15

Section 131A Crimes Act 1961 - Sexual conduct with a dependant family member. Points to note.

Answer 15

1) Dependant family member must be under 18 years of age
2) It is no defence to the charge if the dependant family member consented to the connection.
3) Defendant must have power or authority over the dependant or responsibility or a significant role in their upbringing.

Includes guardians which are defined as being ‘guardian by virtue of the Guardianship Act 1968 or the CYPF Act 1989.

Question 16

Section 131B Crimes Act 1961 - Meeting young person following grooming.

3 Actions taken by the offender?

Answer 16

Having met or communication with a young person on an earlier occasion takes one of the following step:

1) Intentionally meets the young person
2) Travels with the intention of meeting the young person
3) Arranges for or persuades the young person to travel with the intention of meeting them.

Question 17

Section 131B Crimes Act 1961 - Meeting young person following grooming.

When is the offence complete?

Answer 17

1) When the parties meet
2) Travels with the intention of meeting the the young person.
3) Makes arrangements to meet the young person

All with the necessary intent.

Question 18

Section 138 Crimes Act 1961 - Sexual exploitation of person with significant impairment.

The offence has been committed it?

Answer 18

1) The defendant has sexual connection knowing the victim has a significant impairment.
2) The defendant obtained the victims acquiescence, submission, participation by taking advantage of their impairment.

Question 19

Section 195A Crimes Act 1961 - Failure to protect child or vulnerable adult.

Who does this offence apply to?

Answer 19

This offence applies to:

1) Members of the same household as the victim.
2) Staff members of any hospital, institution or residence where the victim resides.

Question 20

Section 195A Crimes Act 1961 - Failure to protect child or vulnerable adult.

Mens Rea and Actuc Reus

Answer 20

Criminal liability is met if the defendant:

1) Knows the victim is at risk of death, GBH or sexual assault as a result of the acts or omissions of another person - Mens Rea
2) Fails to take reasonable steps to protect the victim from the risk - Actus Reus

Question 21

Section 44 Evidence Act 2006 - Sexual Experience evidence

Answer 21

1) No evidence and no questions can be put to any witness relating to sexual experience of the complainant with any person other than the defendant.
2) No questions or evidence can be put to any witness relating to the sexual reputation of the complainant.

Unless its exclusion would be contrary to the interests of justice and is sufficiently relevant to the proceedings.

Question 22

Section 87 Evidence Act 2006 - Complainants address

Answer 22

1) No evidence and no questions can be put to any witness relating to the complainants address.

Unless its exclusion would be contrary to the interests of justice and is sufficiently relevant to the proceedings.

Question 23

Section 35 Evidence Act 2006 - Previous consistent statement

Answer 23

Previous consistent statements may only be admitted as rebuttal evidence.

Question 24

Section 130 Crimes Act 1961 - Incest

What must the crown prove?

Answer 24

The crown must prove the relationship between the parties;
Child, parent, sibling, half sibling, grandparent, grandchild.

And that the person charged knew of the relationship at the time of the connection.

Person charged must be 16 years of age or older.

Question 25

What is the difference between Section 128A and 129A of the Crimes Act 1961?

Answer 25

128A - Matters that do not constitute consent in relation to sexual violation includes the threat of, or application of force to the victim or other person.

129A - Consent induced by certain threats that do not include the application of force or the threat to apply force to the victim or other person.

Question 26

Section 144 Crimes Act 1961 - Sexual conduct with a child outside of New Zealand.

Explain the essence of this offence.

Answer 26

This section allows for the prosecution of individuals who engage in acts of sexual connection with a child or young person overseas that if committed in New Zealand would constitute an offence. Relates to New Zealand citizens or residents.

Question 27

Section 88 Evidence Act 2006 - Complainants occupation

Answer 27

No evidence shall be heard relating to the complainants occupation unless the judge deems it directly relevant and would be against justice to exclude it.

Question 28

Section 121 Evidence At 2006 - Corroboration

Answer 28

Complainants evidence does not have to be corroborated.

Question 29

Section 103 Evidence Act 2006 - Factors to consider for evidence given in alternative manner

Answer 29

• Age/Maturity
• Physical, intellectual, psychological or psychiatric impairment
• Trauma suffered
• Fear of intimidation
• nature of proceedings
• Nature of evidence
• Relationship of the witness to the defendant
• Absence from New Zealand

Question 30

Section 105 Evidence At 2006 - Alternative ways of giving evidence.

What are the alternative ways of giving evidence?

Answer 30

• From behind a screen in the courtroom
• Via video link
• Prior recorded video interview carried out by a level 3 interviewer

Question 31

What constitutes serious child abuse?

Answer 31

• Sexual abuse
• Serious physical abuse
• Serious wilful neglect
• Serious family violence where the CYP is a child witness
• All allegations against CYFS caregiver, CYFS employee or NZ Police employee that involves serious child abuse.

Question 32

How do you determine the seriousness of the child abuse?

Answer 32

You look at:

• The action of the abuse
• The injuries inflicted
• The circumstances surrounding the incident

Question 33

Explain the CYFS time frames.

Answer 33

Critical - Immediate risk of serious harm, need for immediate protection may be necessary

Very Urgent - At risk of harm but not immediate danger

Urgent - At risk of harm but protected in the short term

Question 34

What 6 things does the Initial Joint Investigation Plan cover?

Answer 34

• Management of initial interview
• Interview, specialist required
• Safety and well being of CYP
• Collection of evidence
• Joint visits required
• Referral to Doctor

Question 35

Explain the ASA sexual assault time-frames.

Answer 35

Acute - Within 7 days of sexual assault

Non-Acute - At 7 or more days after the sexual assault

Historic - After 6 months from the sexual assault

Question 36

What is the purpose of key process point 4, the preliminary interview?

Answer 36

• What further investigation actions are necessary
• Whether an offence may have occurred
• Whether the victim wishes to make a formal complaint

Question 37

What do you need to ensure after the preliminary interview?

Answer 37

• Ensure the victim is safe
• Ensure all necessary initial action has been taken
• The environment is comfortable and private

Question 38

What do you tell a sexual assault victim prior to a medical exam?

Answer 38

Explain that the examination will be:

• Conducted by a medical forensic practitioner specially trained in examining individuals who have been sexually assaulted.
• The examination could have potential health benefits
• The examination can help recover forensic evidence that could assist in the apprehension of the offender.
• The examination can take several hours
• Ask the victim if they have any preference as to the gender of the medical practitioner.

Question 39

What is the primary objective of a medical examination?

Answer 39

The primary objective is the victims physical, sexual and mental health and safety. The secondary objective is to obtain forensic evidence.

Question 40

What should you take with you to a medical examination?

Answer 40

• Change of clothes for the victim
• MEK and toxicology kits
• All details of the victim as well as details about the nature of the incident, intoxication or drug use, time since the offence.