Sex Offences Flashcards
What was held in R v Harpur as it relates to an attempt?
“An attempt includes an act or omission constituting a substantial step towards a course of conduct planned”
What was held in R v Cox in relation to the possibility of consent with children under 12yrs old?
“They would be exceptional and rare circumstances where a child under 12yrs was able to give legal consent”
What was held in R v Cox in relation to reasonable belief in consent with children under 12yrs?
“In all but extremely rare circumstances it was not reasonable for an adult to believe that a child was consenting to sexual activity”
What must the relationship be between two parties for a charge of Incest S.130 CA1961 ?
Parent & Child
Siblings & Half-Siblings
Grandparents & Grandchildren
How old must an offender be to be charged with Incest?
Must be at least 16 years of age
What must the Crown prove in a charge of Incest S.130 CA 1961?
Must prove that each person charged knew of their relationship before or at the time of the sexual connection
Under S.131CA sexual conduct with dependant family member, can the dependent family member be charged as a party?
No, they cannot be charged as a party.
However consent on the behalf of the victim is not a defence to this charge
What acts are covered under a charge against S.131 CA?
Has Sexual Connection
Attempts to have Sexual Connection
Does an Indecent Act
How old can a victim be for a charge against S.131 CA?
Up to 18 years old
What does S.121 of the Evidence Act Discuss?
Why is it particularly relevant to sexual cases?
S.121 of the Evidence Act states that a victims evidence does not have to be corroborated. This is especially important in cases of a sexual nature because often there is no independent evidence to corroborate the victims account.
Define corroboration?
To strengthen or support with other evidence, to make more certain
Define Sexual Violation?
When a person rapes another person by penetrating the vagina with the penis without consent or without reasonable grounds to believe there was consent
OR
When a person has unlawful sexual connection with another person by introduction into the genitalia or anus of a person, other than for some genuine medical purpose, by a part of another persons body, or by an object held or manipulated by them or by the connection of the mouth or tongue with the genitals or anus of another person without consent and without reasonable grounds to believe there was consent
Discuss the difference between rape and unlawful sexual connection?
Define both
Difference being that rape is gender specific (penis must penetrate vagina) even if a surgical analogue, whereas unlawful sexual connection is gender neutral and the victim can be of either sex as it allows for penetration of and connection with both anus & genitalia
What must the Crown prove in all cases of sexual violation?
That there was an intentional act by the defendant involving sexual connection with the victim
That the victim was not consenting (and)
That the defendant did not believe the victim was consenting (or)
If the defendant did believe that the victim was consenting, the grounds for such a belief were not reasonable
Is there a defence to a charge of sexual violation for a spouse? If so what is it?
No there is no defence to S.128 CA for spouses
What is the maximum penalty for a charge of Sexual Violation S.128 CA?
20 years Imprisonment
Define Sexual Connection as stated in S.2 CA1961?
Connection effected by the introduction into the genitalia or anus of a person, other than for genuine medical purposes, by a part of another persons body, or by an object held or manipulated by them or by the connection of the mouth or tongue of a person with the anus or genitalia of another person, or any continuation of a connection described above
What can be used by the Crown to prove penetration?
The victims evidence
Medical examination, including injuries and DNA evidence
The defendants admissions
Define genitalia as per S.2 CA1961?
The genitalia includes the penis and testicles of a male and the vulva and vagina of a female, including any surgically constructed or reconstructed analogue.
What was held in R v Koroheke in relation to genitalia?
R v Koroheke held that:
“the genitalia comprises of the reproductive organs both interior and exterior…including the vulva and labia, both internal and external at the opening of the vagina”
What is continuation in reference too in matters of sexual connection?
Continuation is where where sexual activity is started consensually but consent is later withdrawn.
There is an obligation on a person to stop the sexual activity at the point that they realise that the other person is, or may be, no longer willing.
Failure to do so may render a previous consensual act unlawful
At what age is it presumed by law to be incapable of consenting to sexual connection? And what is its relevance to a defence against a charge of unlawful sexual connection?
There is no age in law where it is presumed that someone is incapable of consenting to sexual connection.
This would mean that it is not a defence to say that either party was too young or old to have sexual connection.
What must the Crown prove in relation to consent in matters of unlawful sexual connection?
Crown must prove:
The victim was not consenting (and) (subjective)
The defendant did not believe that the victim was consenting (or) (subjective)
That if the defendant did believe that the victim was consenting that there were not reasonable grounds to hold this belief (objective)
Define consent?
Consent is a conscious and voluntary agreement to something desired or proposed by another
What was held in R v Cox in relation to consent?
“Consent must be full, free, voluntary an informed, given by someone able to form a rational judgement”
Whether or not a victim is consenting or not is what sort of test?
How is this proved?
Whether or not a victim is consenting is a subjective test.
This is proved by what the victim was thinking at the time in question.
What are the three test when establishing consent
Subjective: What was the victim thinking?
Subjective: What did the defendant believe at the time?
Objective: What would a reasonable person have believed in the defendants position?
What was held in R v Gutuama?
Under the objective test the Crown must prove that “no reasonable person in the defendants shoes could have thought that the victim was consenting”
List four matters not constituting Consent other than fear, force & threats?
Lack of physical resistance or protest
Asleep or unconscious
Affected by drugs or alcohol to the point they cannot refuse or consent
Impaired by some mental or intellectual condition to such a point they cannot refuse or consent
Mistaken as to the nature and quality of the act
Mistaken as to the identity of the person involved in the act
Allowing sexual activity does not amount to consent in what circumstances?
There has been force applied to them or some other person
There has been threats (express or implied) of the application of force to them or some other person
They fear the application of force to him or her or some other person
What was held in R v Koroheke in relation to the difference between consent & submisson?
It is important to distinguish between consent that is freely given and submission by a women to something that is unwanted but unavoidable.
For example, submission by a women because she is frightened of what might happen if she does not give in or co-operate, is not true consent.
What section of the Crimes Act covers matters that do not constitute consent?
Section 128A (1-9) covers matters that do not constitute consent
In matters of mistaken identity S.128A (6) not constituting consent, who is the mistake made by?
The mistake is made by the person submitting to the sexual activity, not the defendant.
That being said, this does not mean it is a defence on the part of the defendant.
What are the two offences covered by S.129 CA1961?
S. 129 (1) Attempted Sexual Violation
S.129 (2) Assault With Intent to commit Sexual Violation
What two components must exist to be guilty of an attempts offence?
There must be real and substantial steps taken towards completing the full offence
There must be an intention to complete the full offence
What are the two types of intention when proving intent?
What is the relevant Case Law?
An intention to commit a deliberate act (must be more than involuntary or accidental)
An intention to get a specific result (must have an aim or purpose)
The relevant case law is R v Collister which states “An offenders actions and words, before during and after the event, the surrounding circumstances and the nature of the act, can all point to the necessary intent”
Define Intent?
An desire or intention to carry out a specific course of action
What is the key difference between sexual violation and attempted sexual violation?
What elements do they share?
The key difference is that in an attempted sexual violation the actual violation itself does not occur.
However the mental elements are the same: intent to sexually violate and no reasonable belief in consent
What must the Crown prove in relation to charges of attempted sexual violation?
That there was an intention to have sexual connection with the victim
That the victim was not consenting (and)
That the offender did not believe that the victim was consenting (or)
That if the offender did believe they were consenting that there were not reasonable grounds for this belief.
What was held in R v Harpur in relation to attempts offences?
An attempt includes “an act or omission constituting a substantial step in a course of conduct planned to culminate in the commission of the offence”
What was held in R v Harpur in relation to sufficient proximity?
“An offenders actions when viewed in isolation may not be seen as predatory but when viewed cumulatively they may amount to a criminal attempt”
What is the maximum penalty for S.129 (2) Assault with Intent to Commit Sexual Violation?
10 Years Imprisonment
What must the Crown prove in matters of S.129 (2) Assault with intent to commit sexual violation?
That there was an assault
That there was an intention to have sexual connection
That the victim did not consent to the sexual connection (and)
The defendant did not believe on reasonable grounds that the victim was consenting
Define Assault as stated in S.2 of CA1961?
The act of intentionally applying or attempting to apply force to another person, either directly or indirectly or by any threatening gesture
Name three offences listed under S.132 CA1961?
132 (1) -Has sexual connection with child
132 (2) -Attempts to have sexual connection with child
132 (3) -Does an indecent act on a child
Define a child?
A person 11 years or younger
S.132 CA deals with children up to what age?
What section is also relevant to the age of victims in similar matters?
S.132 deals with victims up to 11 years of age
S.134 deals with victims from 12-15 years of age
What does S.132 (6)(b) CA refer to?
Doing an indecent act on a child also covers indecently assaulting a child
What was held in R v Court in reference to indecency?
Indecency means “conduct that right thinking people would consider an affront to the sexual modesty of the person”
What must a defendant prove when claiming a defence to a charge against S.134A CA?
That they took reasonable steps to ascertain that the victim was at least 16yrs of age
That they believed on reasonable grounds that the victim was at least 16yrs of age
That the victim was consenting to the sexual activity
What must the Crown prove in charges against S.135 CA1961?
That the defendant intentionally assaulted the victim
That the circumstances surrounding the assault were indecent
That the defendant intended the conduct that a reasonable person would find indecent
What was held in R v Leeson?
The definition of an indecent assault is “an assault accompanied with circumstances of indecency”
What kind of threats are referred to in S.5 of S.129A -Sexual conduct with consent induced by certain threats?
A threat that the person making the threat or someone else will commit an imprisonable offence
A threat that they or some other person will make an accusation or disclosure about misconduct by any person that is likely to damage seriously their reputation
A threat that they will improperly use a power or authority they may hold over the person consenting through either an occupational or vocational position they hold or a commercial relationship existing between the parties
What offence would you consider charging someone with if there was sexual intercourse between a step-parent & step-child? Name the act, section and elements of the offence
Sexual Conduct with a Dependnat Family Member
S.131 (1) CA1961
A person
Has sexual connection
With a dependent family member
Under the age of 18
Who can qualify as having a dependant family member relationship?
Step-parent & step-child
Aunt/Uncle & Niece/Nephew
Foster Parent & Foster Child
Guardian & Young Person
Other members of wider recognised family or cultural group who have a significant role in the life of the young person
When is the offence of S.131B meeting with a young person following sexual grooming complete?
When offender intentionally meets young person
When the offender travels with the intention to meet the young person
When the offender persuades or encourages the young person to travel with the intention to meet them
What is a defence to a charge under S. 131B Meeting Young Person Following Sexual Grooming?
If before the offender took action they:
Took reasonable steps to ascertain that the young person was at least 16yrs of age
(AND)
At the time they took action:
Believed on reasonable grounds that the young person was at least 16yrs of age
What constitutes an exploitive sexual connection under S. 138 CA1961?
Having a sexual connection with an impaired person knowing that the impaired person is a person with significant impairment
(AND)
Having obtained the impaired persons acquiescence in, submission to or participation in, the connection by taking advantage of the impairment
According to S. 138A what must a persons impairment effect their capacity to do?
Affect their capacity to:
Understand the nature of the sexual conduct (or)
Understand the nature of decisions about sexual conduct (or)
To foresee the consequences of decisions about sexual conduct (or)
To communicate decisions about sexual conduct
What does S.144A of the CA1961 relate to?
It details the offence of Sexual Conduct with Children & Young People Outside New Zealand
Who must approve a charge against S.144A CA1961?
The Attorney General must approve any decision to lay a charge against this section of the Crimes Act
What does S.44 of the Evidence Act S.(1) & S.(2) prohibit?
S.(1) Prohibits any questions being asked or evidence being presented that relates to the sexual experience of the witness with anyone but the defendant
S.(2) Prohibits any questions being asked or evidence being presented that relates directly or indirectly to the reputation of the witness in sexual matters
What sort of evidence can previous consistent statements be used as under S.35 of the Evidence Act?
Previous consistent statements can be used as rebuttal evidence only
Who is responsible for ensuring that the Video/DVD records are transcribed & provided to the defence?
This is the role of the Police Officer in Charge and should be done as soon as practicable after the defendant has plead not guilty
Who is liable to be charge under S.195A CA1961?
Members of the same household as the victim
People who are staff members of any hospital, institution or residence where the victim resides
What circumstances must exist for a person to be charged under S.195A CA1961?
They must know that the victim is at risk of death or grievous bodily harm or sexual assault as a result of the acts or omissions of another person
(AND)
Fail to take reasonable steps to protect the victim from that risk
What should you do to gain the complainants co-operation throughout a ASA investigation?
Communicate with them & keep them informed
What does CALMTEA stand for in ASA investigation?
Conduct dealings in a sensitive manner
Accept they are telling the truth until/unless there is evidence to prove the contrary
Listen to what they tell you and give them the opportunity to tell their account in their words
Establish whether they require medical attention
Treat them courteously
Explain the process you are following and why you need to do that
Advise them of the local counselling service
Sexual Violation By Rape: List the Section Number, Elements & Maximum Penalty
Sexual Violation By Rape
S.128 (1) CA1961
Maximum Penalty: 20yrs Imprisonment
A person
Rapes
Another Person
Sexual Violation By Unlawful Sexual Connection: List the elements, section and maximum penalty
Sexual Violation By Unlawful Sexual Connection
S.128 (2)
Maximum Penalty: 20yrs Imprisonment
A person
Has unlawful sexual connection
With Another Person
Assault with Intent to commit Sexual Violation: List the elements, section number & maximum penalty
Assault With Intent to Commit Sexual Violation
S.129 (2) CA1961
Maximum Penalty: 10yrs Imprisonment
A person
Assaults
Another person
With intent to sexually violate the other person
Incest: List the elements, section number and maximum penalty
Incest
S.130(1) CA1961
Maximum Penalty: 10yrs Imprisonment
A person
Has sexual connection
With: parent & child, siblings, half-siblings or grandparent & grandchild
And the person charged knew of the relationship
Sexual Conduct with Dependant Family Member: List the elements, section & maximum penalty
Sexual Conduct with Dependant Family Member
S.131 (1) CA1961
Maximum Penalty: 7yrs Imprisonment
A person
Has sexual connection
With a dependant family member
Under the age of 18yrs of age
Sexual Conduct with Child Under 12: List the section, elements & maximum penalty
Sexual Conduct with Child Under 12
S.132 CA1961
Maximum Penalty: 14yrs Imprisonment
1) Has sexual connection with
2) Attempts to have sexual connection with
3) Does an indecent act on
A child under 12yrs of age
Sexual Conduct with Young Person Under 16yrs: Name section, elements & maximum penalty
Sexual Conduct with Young Person Under 16yrs
S.134 CA1961
Maximum Penalty: 10yrs Imprisonment
1) Has sexual connection with
2) Attempts to have sexual connection with
3) Does an indecent act on/Indecently Assaults
A young person under 16yrs
Indecent Assault: Name the section, elements & maximum penalty
Indecent Assault
S.135 CA1961
Maximum Penalty 7yrs Imprisonment
A person
Indecently Assaults
Another person
Sexual Exploitation Person with Significant Impairment: Name the section, elements and maximum penalty
Sexual Exploitation of Person With Significant Impairment
S.138 CA1961
A person
Has sexual connection with
An Impaired person
Knowing that the person is a person with a significant impairment
AND
Has obtained the persons acquiescence in, submission to or participation in the connection
By taking advantage of the impairment
Failure to Protect Child or Vulnerable Adult
Failure To Protect Child or Vulnerable Adult
S.195A CA1961
Being a person of the same household as the victim (or)
A person who is a staff member at a hospital or institute where the victim resides
AND
Knowing that the victim is at risk of being sexually assaulted, suffering GBH or death
Does not act to protect the child or vulnerable adult
What was held in R v Dunn?
R v Dunn states that “Indecency must be judged in the light of time, place and circumstance. It must be something more than trifling, and be sufficient to warrant the sanction of the law”
What are the time frames for ASA Complaints:
Acute:
Non-Acute:
Historic:
Acute: Up to 7 days
Non-Acute: From 7 days to six months
Historic: Six months or older
What should be established in a preliminary interview?
What happened (brief outline of facts)
When it happened (forensic considerations)
Where it happened (scene exam, forensics)
Who did what (offender ID, suspect enquires)
Any medical needs (Hospital, drugs used)
What are the ten ASA Investigation Key Process Points?
- Initial Action
- Case Refferal to CIB
- Specialist Support Referral
- Preliminary Interview
- Information Feedback
- Medical Examination
- Formal Interview
- Investigation and Evidence Assessment
- Resolution Options
- Prosecution
In what circumstances is a medical examination considered even more important?
In acute reports of sexual assault or in cases of suspected drug-facilitated sexual assault
What information should be given to the MEDSAC Doctor when making the referral?
-Brief outline of information gathered so far e.g. time of sexual assault
-Whether drugs or alcohol are suspected
-Victims details, gender, age, injuries, medical considerations
What should be explained to victims before undertaking a Medical Examination?
-The exam will be conducted by a medical forensic practitioner specifically trained to examine sexual assault victims
-There are potential medical benefits to the victim and secondly can help Police gather trace evidence
-Outline the expected time frame and if appropriate any potential outcomes of the examination
