Sex offences

Question 1

Sexual violation by rape (Elements)

Answer 1

Section 128(1)(a) Crimes Act 1961
- A person
- Rapes
- Another person

Question 2

Rape (Definition)

Answer 2

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. -

Question 3

Sexual connection (Definition)

Answer 3

Section 2 Crimes Act 1961
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 -

Question 4

Penetration (Definition)

Answer 4

Section 2(1A) Crimes Act 1961
Introduction to the slightest degree is enough to effect a connection. Proof of penetration may be established by complainants’ evidence, medical
examination, defendants’ admissions. -

Question 5

Genitalia (Case Law)

Answer 5

R v Koroheke
The genitalia comprise the reproduction organs, interior and exterior. They include the vulva [and] the labia, both interior and exterior, at the opening of the vagina.

Question 6

Consent (Definition)

Answer 6

Consent is a person’s conscious and voluntary agreement to something desired or proposed by another

Question 7

Consent (Case Law)

Answer 7

R V COX
Consent must be “full, voluntary, free and informed freely and voluntarily given by a person in a position to form a rational judgment.”

R V GUTUAMA
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”.

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. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.

Question 8

Sexual Violation by U/L sexual connection (Elements)

Answer 8

Section 128(1)(b) Crimes Act 1961
- A person
- Has unlawful sexual connection
- with another person

Question 9

Unlawful sexual connection (Definition)

Answer 9

Section 128(3) Crimes Act 1961
Person A has unlawful 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.

Question 10

Assault with intent to commit sexual violation (Elements)

Answer 10

Section 129(2) Crimes Act 1961
- A person
- Assaults another person
- With intent to commit sexual violation of the other person

Question 11

Assault (Definition)

Answer 11

Section 2 Crimes Act 1961
Means the act of intentionally applying or attempting to apply force to the person of another directly or indirectly

Question 12

Assault with intent to commit sexual violation -Intent

Answer 12

It must be proved that at the time the defendant assaulted the complainant they:
* intended to have sexual connection with the complainant, and
* the complainant did not consent to the sexual connection, and
* the defendant did not believe on reasonable grounds that the
complainant was consenting

Question 13

Intent (Definition)

Answer 13

Intention to commit an act to get a specific result

Question 14

Intent (Case Law)

Answer 14

R v COLLISTER
Circumstantial evidence which the offenders intent maybe inferred can include; actions/words before during or after the event. Surrounding circumstances or the act itself

Question 15

Sexual conduct with a child u/12 (Elements)

Answer 15

Section 132(1) Crimes Act 1961
- A person
- Has sexual connection
- With a child

Question 16

Defence for child u/12

Answer 16

Section 132 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.
(5) It is not a defence to a charge under this section that the child
consented

Question 17

Child (Definition)

Answer 17

Section 132(6)(a) Crimes Act 1961
In this section child means a person under the age of 12 years

Question 18

Age (Case Law)

Answer 18

R V FORREST AND FORREST
“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”

Question 19

Sexual conduct with a child u/12 - Attempts (Elements)

Answer 19

Section 132(2) Crimes Act 1961
- A person
- Attempts to have sexual connection
- With a child

Question 20

Attempts (Definition)

Answer 20

Section 72(1) Crimes Act 1961
Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible
to commit the offence or not.

Question 21

Sexual conduct with a child u/12 - Indecent (Elements)

Answer 21

Section 132(3) Crimes Act 1961
- A person
- Does an indecent act
- On a child

Question 22

Indecent act (Definition)

Answer 22

Section 2(1B) Crimes Act 1961
One person does an indecent act on another person whether he or she
(a) does an indecent act with or on the other person; or
(b) permits the other person to do an indecent act with or on him or her

Question 23

Indencency (Case Law)

Answer 23

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

R V DUNN
indecency 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.”

Question 24

Sexual conduct with a YP u/16 (Elements)

Answer 24

Section 134(1) Crimes Act
- A person
- Has sexual connection
- With a young person

Question 25

Defence for Young Person

Answer 25

Crimes Act 1961 Section 134
(4)
No person can be convicted of a charge under this section if he or she was married to the young person concerned at the time of the sexual connection or indecent act concerned.
(5)
The young person in respect of whom an offence against this section was committed cannot be charged as a party to the offence if the person who committed the offence was of or over the age of 16 years when the offence was committed

Question 26

Young Person (Definition)

Answer 26

Section 134(6)(a) Crimes Act 1961
Young person means a person under the age of 16 Years

Question 27

Sexual conduct with YP u/16 - attempts (Elements)

Answer 27

Section 134(2) Crimes Act 1961
- A person
- Attempts to have sexual connection
- With a young person

Question 28

Sexual conduct with YP u/16 - Indecent (Elements)

Answer 28

Section 134(3) Crimes Act 1961
- A person
- Does an indecent act
- With a young person

Question 29

Indecent Assault (Elements)

Answer 29

Section 135 Crimes Act 1961
- A person
- Indecently Assaults
- Another person

Question 30

Indecent assault (Case Law)

Answer 30

R v Leeson
‘indecent assault is an assault accompanied with
circumstances of indecency

Question 31

Incest (Act & Elements)

Answer 31

Crimes Act 1961 Section 130(1)
- A person
- Has sexual connection
- With a Parent and child or siblings, half siblings or grandparent and grandchild
- The person charged knew the relationship

Question 32

Crimes Act 1961 128A(1)

Answer 32

A person does not consent to the connection just because he or she does not protest or offer physical resistance to the activity

Question 33

Crimes Act 1961 128A(2)

Answer 33

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 or some other person; or
(c) the fear of the application of force to him or her or some other person.

Question 34

Crimes Act 1961 128A(3)

Answer 34

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

Question 35

Crimes Act 1961 128A(4)

Answer 35

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 36

Crimes Act 1961 128A(5)

Answer 36

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 37

Crimes Act 1961 128A(6)

Answer 37

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 38

Crimes Act 1961 128A(7)

Answer 38

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 39

Subjective/Objective Test (U/L Sexual Connection)

Answer 39

The Crown must prove that:
* the complainant did not consent to the sexual act (a subjective test), and
* the offender did not believe the complainant was consenting (a subjective
test), or
* if he did believe she was consenting, the grounds for such a belief were
not reasonable (an objective test)

Question 40

Sexual conduct with a dependent family member (Act & Elements)

Answer 40

Crimes Act 1961 Section 131(1)
- A person
- Has sexual connection
- With a dependent family member
- Under the age of 18

Question 41

Meeting a young person following sexual grooming (Act)

Answer 41

Crimes Act 1961 131B
(1)(a) having met or communicated with a person under the age of 16 years (the young person) on an earlier occasion, he or she takes one of the following actions:
(i) intentionally meets the young person:
(ii) travels with the intention of meeting the young person:
(iii) arranges for or persuades the young person to travel with the intention of meeting him or her; and

Question 42

Meeting young person following sexual grooming (Part B of (1))

Answer 42

(b)
at the time of taking the action, he or she intends—
(i) To take in respect of the young person an action that, if taken in New Zealand, would be an offence against this Part, or against any of paragraphs (a)(i), (d)(i), (e)(i), (f)(i), of section 98AA(1); or
(ii) That the young person should do on him or her an act the doing of which would, if he or she permitted it to be done in New Zealand, be an offence against this Part on his or her part.

Question 43

Meeting young person following sexual grooming (Defence)

Answer 43

Crimes Act 1961 Section 131B
(2) It is a defence to a charge under subsection (1) if the person charged 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

Question 44

Sexual exploitation of a person with significant impairment (Act)

Answer 44

Crimes Act 1961 Section 138
(3) For the purposes of subsections (1) and (2), a person has exploitative sexual connection with a person with a significant impairment (the impaired person) if he or she
(a) Has sexual connection with the impaired person knowing that the impaired person is a person with a significant impairment; and
(b) Has obtained the impaired person’s acquiescence in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment.

Question 45

Failure to protect a child or vulnerable adult (Act)

Answer 45

Crimes Act 1961 Section 195A
(1)(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

Question 46

Evidence of sexual experience or sexual disposition of complainants in sexual cases

Answer 46

Evidence Act 2006 Section 44
(1) In a sexual case, unless a Judge gives permission (on an application made under this subsection and in accordance with section 44A), no evidence can be given and no question can be put to a witness that relates directly or indirectly to—
(a) The sexual experience of the complainant with the defendant
(b) The sexual experience of the complainant with any person other than the defendant:
(c) The sexual disposition of the complainant.

Question 47

Privacy as to witness’ precise address

Answer 47

Evidence Act 2006 Section 87
(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