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SEX OFFENCES Flashcards

1
Q

What is the Crimes Act definition of sexual violation?

A

128 (1) Sexual violation is the act of a person who:

(a) rapes another person; or
(b) has UL sexual connection with another person.

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2
Q

Define ‘sexual connection’.

A

Section 2, Crimes Act 1961

Sexual connection means:

(a) Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of, 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 (b).

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3
Q

Does the extent / degree of penetration matter when proving a sexual connection?

A

Section 2(1A), Crimes Act 1961 (interpretation)

Introduction to the slightest degree is enough to effect a connection.

Penetration of the genitalia or anus must be proved, but the extent of penetration is not relevant; any degree of penetration is sufficient, no matter how slight or fleeting it is.

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4
Q

Give 3 ways of proving penetration.

A

Proof of penetration may be proved by:

  • Complainant’s evidence.
  • Medical examination (injuries, DNA evidence) .
  • Defendant admissions.
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5
Q

Define genitalia.

A

Genitalia / genitals include the penis and testicles of a male and the vulva and vagina of a female.
The wider statutory definition includes surgically constructed genitalia.

Section 2, Crimes Act 1961

R v Koroheke

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6
Q

R v Koroheke

A

Defines genitalia.

The genitalia comprise the reproductive organs, interior and exterior …. they include the vulva (and) the labia, both interior and exterior, at the opening of the vagina.

(Helper - Koroheke’s box).

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7
Q

What is continuation in the context of sexual violations.

A

The definition of sexual connection includes the continuation of sexual acts - where sexual activity is started consensually, but consent is later withdrawn and the act still continues. If a person continues intercourse knowing consent has been withdrawn, the consensual act may have become unlawful.

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8
Q

Can a person be presumed incapable of sexual connection because of their age?

A

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 anyone is capable, in a legal sense, of being involved in a 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.

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9
Q

Establishing / proving sexual connection was unlawful involves what sort of test?

A

A subjective/objective consent in relation to consent.

  • (Subjective) The complainant did not consent to the sexual activity
  • (Subjective) The defendant did not believe the complainant was consenting
  • (Objective) If the defendant did believe the complainant was consenting, this belief was not reasonable.

The Crown must prove these things.

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10
Q

Define consent.

A

A person’s conscious and voluntary agreement to do something desired or proposed by another person

R v Cox
Consent must be “full, voluntary, free and informed …freely and voluntarily given by a person in a position to form rational judgement”.

(Helper - I consent to a lot of Cox)

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11
Q

R v Gutuama

A

Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that (the complainant) was consenting”.

(Helper - Gut-no consent to r-ama)
(Helper - The unreasonable Gutuamalan)

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12
Q

What section of the act outlines situations where apparent consent is not valid?

A

128A
Allowing sexual activity does not amount to consent in some circumstances .

Case law - R v Koroheke - extorcion/submission is not consent

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13
Q

Give examples of ‘invalid consent’

A

A person does not consent to sexual activity when

  • just because they don’t protest or resist
  • asleep/unconscious
  • forced, threatened, or frightened into the act
  • too affected by drugs/alcohol
  • mentally impaired
  • mistaken ID
  • mistaken about nature and quality of the act
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14
Q

What case law relates to invalid consent?

A

R v Koroheke

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. Submission …. is not true consent.

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15
Q

Define rape.

A

Section 128(2), Crimes Act 1961

Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis, -

(a) without person B’s consent to the connection; and
(b) without believing on reasonable grounds that person B consents to the connection.

Rape is a form of UL sexual connection that involves the non-consensual penetration of the complainant’s genitals by the offender’s penis.

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16
Q

Define sexual violation by unlawful sexual connection.

A

Section 128(3), Crimes Act 1961

(3) Person A has UL sexual connection with person B, if person A has sexual connection with person B
(a) without person B’s consent to the connection; and
(b) without believing on reasonable grounds that person B consents to the connection.

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17
Q

Give the act and section for sexual violation by rape.

A

Section 128(1)(a), Crimes Act 1961

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18
Q

Give the act and section for sexual violation by unlawful sexual connection.

A

Section 128(1)(b), Crimes Act 1961

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19
Q

Give the act and section for attempted sexual violation

A

Section 129, Crimes Act 1961

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20
Q

Give the act and section for sexual connection with a child under 12

A

Section 132, Crimes Act 1961

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21
Q

Give the act and section for sexual connection with a young person under 16

A

Section 134, Crimes Act 1961

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22
Q

Give the act and section for indecent act

A

Section 135, Crimes Act 1961

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23
Q

Give the act, section and elements for sexual violation by rape.

A

Section 128(1)(a), Crimes Act 1961

  • A person
  • Rapes
  • Another person

Cox (consent)
Koroheke (genitalia)
Section 2 - (genitalia, penis)
Section 2 - (penetration - slightest degree enough to effect penetration, penetration must be proved)
Gutuama (reasonable person would not believe there was consent)

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24
Q

Give the act, section and elements for sexual violation by unlawful sexual connection

A

Section 128(1)(b), Crimes Act 1961

  • A person
  • Has unlawful sexual connection with
  • Another person
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25
Q

Give the act, section and elements for attempted sexual violation

A

Section 129(2), Crimes Act 1961

  • A person
  • Assaults
  • Another person
  • With intent to commit sexual violation of the other person

Person - generally accepted by judicial notice or proved by circumstantial evidence.
Section 2 CA1961- assault

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26
Q

Give the act, section and elements for sexual connection with a child under 12

A

Section 132, Crimes Act 1961

  • A person
    (a) Has sexual connection with a child
    (b) Attempts to have sexual connection with a child
    (c) Does an indecent act on a child
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27
Q

Give the act, section and elements for sexual connection with a child under 14.

A

Section 134, Crimes Act 1961

  • A person
    (a) Has sexual connection with a young person
    (b) Attempts to have sexual connection with a young person
    (c) Does an indecent act on a young person.
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28
Q

Give the act, section and elements for indecent act

A

Section 135, Crimes Act 1961

  • A person
  • Indecently assaults
  • Another person
29
Q

R v Harpur

A

An attempt (to commit sexual violation) includes “an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime”.

To be guilty of an attempts he defendant must have progressed past preparing and on to a process intended to lead to the commission of the full offence.

i.e. Sufficient evidence of intent can be inferred from events leading up to the intended offence, should they be proximate (R v Harpur, R v Collister)

30
Q

R v Forrest and Forrest

A

Where age is an essential element of an offence, the Crown must prove the age of the complainant at the time of the offence, using the best evidence available to do so (birth certificate, independent evidence that identifies the complainant as the person named on the certificate)`

31
Q

To be guilty of an attempt to commit sexual violation as per Section 129, what two things must the offender do / be proven to have done?

Section 72 also applies / clarifies.

A

To be guilty of an attempt to commit sexual violation, the offender must

  • INTEND to commit the offence, and
  • take a REAL & SUBSTANTIAL STEP towards achieving that aim that is PROXIMATE, not just preparatory

The Crown must prove that the defendant intended to commit the full act of sexual violation, and acted to fufill that aim, along the the consent tests - that the complainant did not consent, and the defendant could not reasonable believed the complainant was consenting

Th act does not have to be committed to constitute an attempt, as long as it is immediately/ proximately connected to the offence.

32
Q

What are the two types of intent

A

Deliberate act, and intent to produce a specific outcome

33
Q

Are these defences to a a charge of sexual connection with a child under 12?

  • that the defendant believed the child was over 12
  • that the defendant believed the child consented to the sexual activity
A

132(4) - It is NOT a defence to a charge under this section that the person charged believed the child was of or over the age of 12 years .

132(5) - It is NOT a defence to a charge under this section that the child consented

34
Q

Are these defences to a a charge of sexual connection with a child under 12?

  • that the defendant believed the child was over 12
  • that the defendant believed the child consented to thew sexual activity
A

132(4) - It is NOT a defence to a charge under this section that the person charged believed the child was of or over the age of 12 years .

132(5) - It is NOT a defence to a charge under this section that the child consented
While consent is a defence under 128, it is NOT a defence under 132. It is only in rare and exceptional circumstances that a child can give consent, and it is not reasonable for an adult to believe a child could consent (Cox v R)

35
Q

Define indecent act.

A

An act accompanied by circumstances of indecency.

An act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values. It must be proven that the defendant intended their behaviour and that it was indecent

R v Court
R v Leeson

36
Q

R v Court

A

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

37
Q

Explain what 3 things the defendant must prove to have a statutory defence to a charge under 134A (Sexual conduct with a young person under 16)

A

It is a defence under 134 if the person charged proves that, before the time of the sexual activity,

  • they had taken reasonable steps to determine whether the young person was of or over the age of 16
  • they believed that the young person was of or over the age of 16
  • the young person consented
38
Q

R v Leeson

A

The definition of indecent assault ….. is an assault accompanied with circumstances of indecency.

39
Q

Name three key factors in the offence of Incest, Section 130

A
  • the defendant is if of or over the age of 16
  • the defendant has a familial relationship with he victim
  • the defendant knows there is such a familial relationship
40
Q

Give the act and section for Incest

A

Section 130, Crimes Act 1961

Sexual connection is incest where it is between 2 people who have the relationship of parent/child, grandparent/grandchild and or siblings.
The person charged must be aware of the familial relationship

Consent is no defence.

41
Q

Give the act and section for sexual conduct with a dependant family member

A

Section 131A, Crimes Act 1961

The dependant is under the age of 18, and consent is not a defence. Police must prove that the offender has a certain role in relation to the victim (i.e. step-parent/step-child) and that they had power or authority over the dependant person within the context of a domestic relationship.

42
Q

Give the act and section for meeting a young person following grooming

When is the offence complete?

A

Section 131B, Crimes Act 1961

The offence is complete when the defendant meets the complainant (or) travels to meet the complainant (or) makes arrangements to meet the complainant

43
Q

Can evidence or questions be put to a complainant about their sexual experiences with any person other than the defendant

A

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.

44(1) is still subject to the propensity rule in 40(3)

44
Q

What are some of the advantages of visually recorded interviews

A
  • Greater faulty and quantity of information
  • Minimising trauma for the victim, by having the video be played as evident in chief
  • reducing contamination by the interviewer in the process of putting the information into a written statement
  • providing a means for the victim tor refresh their memory before court proceedings
45
Q

Give reasons why a visually recorded child statement is the best way to meet a childs’ needs

A
  • The interview is focused on the child
  • The interview can be used as the basis for an investigation, prosecution and/or CPP
  • It avoid re-interviewing the child for different purposes
46
Q

Under regulation 28 of the Evidence Regulations 2007, what are you required to do with the typed transcript of a visual record that is to be used in Court proceedings

A

Provide it to the defendant or their lawyer as soon as practicable where the defendant has pled not guilty

47
Q

Section 103(3) of the Evidence Act 2006 - give 3 grounds on which, under this section, a direction can be made in regards to a witness giving evidence in an alternative way

A

103(3) A direction under subsection (1) that a witness is to give evidence in an alternative way, may be made on the grounds of—

(a) the age or maturity of the witness:
(b) the physical, intellectual, psychological, or psychiatric impairment of the witness:
(c) the trauma suffered by the witness:
(d) the witness’s fear of intimidation:
(e) the linguistic or cultural background or religious beliefs of the witness:
(f) the nature of the proceeding:
(g) the nature of the evidence that the witness is expected to give:
(h) the relationship of the witness to any party to the proceeding:
(i) the absence or likely absence of the witness from NZ
(j) any other ground likely to promote the purpose of the Act

48
Q

Section 105, Evidence Act 2006

Give 3 alternative ways a witness can give evidence

A

105 - Alternative ways of giving evidence
(1) A Judge may direct, under section 103, that the evidence of a witness is to be given in an alternative way so that—

(a) the witness gives evidence—
(i) while in the courtroom but unable to see the defendant or some other specified person; or
(ii) from an appropriate place outside the courtroom, either in New Zealand or elsewhere; or
(iii) by a video record made before the hearing of the proceeding (DVD as evidence in chief).

49
Q

What does R v Cox say about children and whether they can consent to sexual activity?

A

‘Although we do not exclude that a child … may be able to give full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion are extremely rare.” - compliance and consent (understanding) are different.

“Save in rare and exceptional circumstances … no reasonable adult would have grounds for believing (a child) …. has the experience or maturity to understand the nature and significance of the act”.

50
Q

Sexual assaults are classified based on the time of reporting as

  • acute
  • non-acute
  • historic

What are the time frames?

A
  • Acute - within 1-7 days of the offence
    Forensic medical must be contacted ASAP and ideally conducted with 24 hours
  • Non-acute - reported 7 days - 6 months after the incident
    Medical should be considered
  • Historic - reported more than 6 months after the incident
    Victim may still benefit from medical and referral should be considered
51
Q

What does the Evidence Act say about the disclosure of a victim’s address and or occupation?

A

Section 87 - in any proceeding, apart from with the Judge’s permission, the victim’s address can not be subject of questioning

Section 88 - in sexual cases, apart from with permission from a judge, questions can’t be put to the victim about their occupation

applications can be made to have addresses and occupations disclosed. The judge may grant permission if they are satisfied that doing so ‘is of sufficient direct relevance to the facts in issue that to exclude it would be contrary to the interests of justice’.

52
Q

What needs to be done after a child has been forensically interviewed?

A

evaluate

  • where the investigation will go
  • what does this mean for the child
  • how OT should be involved - discuss outcome w OT
  • discuss safety plans for the child with OT
53
Q

Give the act, section and elements for sexual conduct with a dependant family member under 18

A

Section 131(1), Crimes Act 1961

  • everyone
  • has sexual connection
  • with a dependant family member under 18 years
54
Q

Give the act, section and elements for incest

A

Section 130, Crimes Act 1961

  • everyone who
  • has sexual connection with
  • a parent or child OR grandparent or grandchild OR half-sibling
  • knowing of the relationship
55
Q

There are specific mens rea and acts rea for liability under 195A to arise; what does this section relation to and what are the MR and AR?

A

Mens rea - know the child is at risk

Actus rea - fail to act to prevent or mitigate that risk

56
Q

What is the defence to the charge of meeting a young person following grooming?

A

Section 131(B), Subsection 2

It is a defence to a charge under subsection (1) if the person charge proves that, -

(a) before the time he or she took the action concerned,, he or she had taken reasonable steps to find out whether the young person was of or over the age of 16 years; and
(b) at the time he or she took the action concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years

57
Q

Define penis

A

Section 2

Includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis. Forms part of the male genitalia.

58
Q

Define dependent family member

A

131A Dependent family member defined
(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

59
Q

Is consent a defence to sexual conduct with a dependant family member under 18?

A

NO,

131 Sexual conduct with dependent family member
(5) It is not a defence to a charge under this section that the dependent family member consented.

60
Q

As per Section 129A section 5 - There are 3 kinds of threats a person can make to induce a person to have sexual connection with them.

What are these kinds of threats?

A

(5) The kinds of threat referred to in subsections (3) and (4)(a) are—
(a) a threat that the person making the threat or some other person will commit an offence that—
(i) is punishable by imprisonment; but
(ii) does not involve the actual or threatened application of force to any person; and

(b) a threat that the person making the threat or some other person will make an accusation or disclosure (whether true or false) about misconduct by any person (whether living or dead) that is likely to damage seriously the reputation of the person against or about whom the accusation or disclosure is made; and

(c) a threat that the person making the threat will make improper use, to the detriment of the person consenting, of a power or authority arising out of—
(i) an occupational or vocational position held by the person making the threat; or
(ii) a commercial relationship existing between the person making the threat and the person consenting

61
Q

Section 195 refers to Ill-treatment or neglect of child, or vulnerable adult

Who can be charged with this?

Can they be charged if they were under 18 at the time?

A

(2) The persons are—
(a) a person who has actual care or charge of the victim / member of the same household
(b) a person who is a staff member of any hospital, institution, or residence where the victim resides.

NO.

62
Q

A person may be charged with 195A - Failure to protect child or vulnerable adult if they live in the same household as the victim.

What does 195A say about what it means to live in the same household.

A

(4) For the purposes of this section,—
(a) a person is to be regarded as a member of a particular household, even if he or she does not live in that household, if that person is so closely connected with the household that it is reasonable, in the circumstances, to regard him or her as a member of the household:

(b) where the victim lives in different households at different times, the same household refers to the household in which the victim was living at the time of the act or omission giving rise to the risk of death, grievous bodily harm, or sexual assault.
(5) In determining whether a person is so closely connected with a particular household as to be regarded as a member of that household, regard must be had to the frequency and duration of visits to the household and whether the person has a familial relationship with the victim and any other matters that may be relevant in the circumstances

63
Q

To be liable to a charge under 195A, Failure to protect child or vulnerable adult, what must you

  • know
  • fail to do
A

(1) Every one is liable to imprisonment for a term not exceeding 10 years who, being a person described in subsection (2), has frequent contact with a child or vulnerable adult (the victim) and—

(a) knows that the victim is at risk of death, grievous bodily harm, or sexual assault as the result of—
(i) an unlawful act by another person; or
(ii) an omission by another person to discharge or perform a legal duty if, in the circumstances, that omission is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies; and

(b) fails to take reasonable steps to protect the victim from that risk

64
Q

Discuss defences / things that are not defences / case law for the charge of

  • Sexual conduct with a child under 12
A

132(4) - It is NOT a defence to a charge under this section that the person charged believed the child was of or over the age of 12 years .

132(5) - It is NOT a defence to a charge under this section that the child consented

132(6) - a child is a person under the age of 12 years

R v Cox - no reasonable adult would believe a child could consent

127 - there is no presumption that a person can be incapable of sexual activity because of their age

r v Forrest and Forrest should be discussed

65
Q

Is it a defence to a charge of sexual connection with a dependant family member, to say that the dependant consented?

A

131(5) - it is NOT a defence to say that the dependant consented

131A(1) - make sure you define what a dependant family member is

R v Forrest and Forrest must be discussed because age is a charging factor, as is the role of the defendant in the dependant’s domestic life

(5) sections usually refer to consent

66
Q

Discuss defences / things that are not defences / case law for the charge of

  • Sexual conduct with a YP under 14
A

134(4) It IS a defence if the defendant can prove they were married to the victim at the time of the sexual connection or indecent act concerned.

134A - it IS a defence if the defendant can prove 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.

67
Q

Discuss defences / things that are not defences / case law for the charges of

  • Assault with intent to commit sexual violation
A

R v Harpur - real, proximate and substantial steps made with intent

Section 72 - attempts

68
Q

Discuss defences / things that are not defences / case law for the charges of

  • Incest
A

It is NOT a defence to say that the victim consented

It IS a defence to say that the defendant was unaware of the familial relationship

Age is a factor in charging so always refer to R v Forrest and Forrest

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