Sex offences Flashcards
s138(3) Crimes Act 1961 - sexual exploitation of significantly impaired person
Knowing the person has the significant impairment and taking advantage of it to get participation in the act.
Penetration
Affected by the slightest degree.
May be established by:
- The complainant’s evidence
- Medical examination, including physical injuries and DNA evidence.
- The defendant’s admissions
The Crown must prove beyond reasonable doubt that… (rape/unlawful sexual connection)
- There was an intentional act by the offender involving sexual connection with the complainant AND
- The complainant did not consent to the sexual act AND
- The offender did not believe the complainant was consenting OR
- If the offender did believe the complainant was consenting, the grounds for such a belief were not reasonable
Consent
A person’s conscious and voluntary agreement to something desired or proposed by another
s128A Crimes Act 1961 (consent invalid)
A person does not consent if:
Mistaken ID
Impairment (drugs/alcohol) so affected by
Nature and quality (mistaken as to)
Impairment (intellectual/physical/mental) of such nature and degree
Force, threat, fear
Asleep or unconscious
Protest or resistance (just because does not offer)
s134A defence
- Took reasonable steps to find out 16+ AND
- Believed on reasonable grounds 16+ AND
- YP consented
To be guilty of an attempt to commit an offence…
A person must:
- Intend to commit the offence AND
- Take a real and substantive step towards achieving that aim AND
- Be sufficiently proximate
Intent - deliberate act
Means that act or omission must be done deliberately. The act or omission must be more that involuntary or accidental.
Intent - to produce a result
Intent to produce a specific aim, object or purpose
R v Collister - Circumstantial evidence from which intent can be inferred can include:
- The offender’s actions and words before, during and after the event
- The surrounding circumstances
- The nature of the act itself
Crown must prove with attempted sexual violation that…
The defendant:
- Intended to have sexual connection with the complainant AND
- The complainant did not consent to the intended SC AND
- Did not believe on reasonable grounds that they were consenting
Assault
The 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 threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose.
Assault with intent to commit sexual violation can arise from two different intentions…
The offender may assault the victim:
- In the hope that the complainant will then change their mind and consent to the act OR (assault or indecent assault)
- Intending to commit rape or sexual connection regardless of whether the complainant changes their mind (attempted SV or assault with intent to commit SV)
Rape
Penetration of a persons genitalia by ones penis (inc surgically reconstructed), without consent, and without believing on reasonable grounds there was consent
Sexual Connection
Introduction into genitalia or anus by part of another’s body, object or mouth (exl legit medical exam)
Genitalia
Penis and testicles of a male, and vagina and vulva of female. Includes surgically constructed or reconstructed.
s132(4) and (5) - Sexual conduct with a child under 12 - not defences….
(4) It is not a defence that the person charged believed the child was of or over 12
(5) It is not a defence that the child consented
s134A Dependent family member
If the other person has power or authority over them and is:
- Parent, step-parent, foster parent, guardian, uncle or aunt of
- A parent, step-parent or foster parent of above described person
- A child of parent or step-parent
- The spouse or de facto partner of persons above
- If they are living with them and has power or authority or responsibility for or significant role in care or upbringing
s131B offence completed when…
Having met with or communicated with person under 16 on an earlier occasion, takes one of the following actions:
- Intentionally meets the YP
- Travels with intention of meeting YP
- Arranges for or persuades the YP with intention of meeting them AND
At the time of taking the action, intends:
- to sell/buy/barter/rent/hire/enters into dealing under 18 for sexual exploitation
- detains/confines/imprisons or carries away under 18 for sexual exploitation
- removes/receives/transports/imports or brings to a place under 18 for sexual exploitation
- induces under 18 to sell/rent/give themself for sexual exploitation OR
- Under 18 should do on them an act which in NZ would be an offence.
s131B(2) defence
Person proves that took reasonable steps to find out if YP was of or over 16 and believed on reasonable grounds that of or over 16
s138(3) - Sexual exploitation of person with significant impairment
Exploitative sexual connection with an impaired person if
- Has sexual connection with impaired person knowing they have significant impairment AND
- Has obtained the impaired persons participation by taking advantage of the impairment
Sexual violation
A person rapes or has unlawful sexual connection with another person
R v Koroheke (genitalia)
The genitalia comprise the reproductive organs, interior and exterior, including the vulva and labia both internal and external at the opening of the vagina.
R v Cox (consent)
Consent is full, voluntary, free and informed freely and voluntarily given by a person in a position to form rational judgement.
R v Koroheke (consent)
Consent is freely given, rather than submission to something unwanted but unavoidable
R v Gutuama (consent)
No reasonable person would think there was consent
Defences to a s134 charge
s134A - consent + offender must take reasonable steps to find out age AND believe on RG at the time that the person was 16+
s134(4) - married to YP at the time.
Indecent Act
s2 CA 1961
- Does an indecent act on another
- Permits person to do indecent act on them
R v Court
Conduct that right thinking people will consider an affront to the sexual modesty of the complainant
R v Leeson
Indecent assault = assault + indecent circumstances
R v Dunn
Indecency judged by time/place/circumstances
Crown must prove in relation to indecent assault
- The defendant intended to assault the complainant
- The circumstances accompanying the assault were indecent
- The defendant intended the conduct that a reasonable person would consider indecent
Defences for charge of sexual conduct with YP under 16
s134A - consent + offender must take reasonable steps to find out age AND believe on reasonable grounds that over 16
s134(4) - married at the time
Indecent act (s2)
Does an indecent act with or on the other person
Induces or permits the other person to do an indecent act
Actions taken to assist victim to recover
- Conduct dealings in sensitive manner
- Accept they are telling the truth (unless evidence to the contrary)
- Listen to what they tell you (own words or vent)
- Medical attention
- Treat them courteously
- Explain the process and why
- Advise of local counselling services
Child centered timeframes
Timeframes that are relevant to child’s age and cognitive development.
Child abuse - OT Act 1989
The harming (whether physically/emotionally/sexually), ill-treatment, abuse, neglect, or deprivation of any child or young person.
Areas to consider when determining seriousness of physical abuse
- Action of abuse
- Injury inflicted
- Circumstances
Obligations to victims
To provide information about services available, investigation and relating proceedings.
- obligations must be met and contact recorded.
- investigation progress update within 21 days
- kept updated and informed of outcome of investigation - no lines or no charges
- s29 offence? ASAP
- case closure and outcome. property returned
Explaining medical forensic exam
- Exam conducted by a medical forensic practitioner specially trained in sexual assault
- Benefits including sexual/physical/mental health, obtain evidence to ID offender
- expected time and possible outcomes
- ask about concerns about gender of practitioner and will attempt to accomodate
Victims should refrain from ___ until after medical exam
- Eating or drinking
- Going to the toilet (or capture urine and don’t wipe)
- Washing and showering
- Washing hands
- Biting fingernails
- Changing clothes (consider sterile sheet)
- Smoking
- Brushing or combing hair
- Brushing teeth or rinsing mouth
Reg 28 - Evidence Regulations Act 2007
Must ensure a typed transcript is given to defendant or lawyer as soon as practicable after not guilty plea
Advantages of visually recorded interviews
- Greater quality and quantity of information obtained
- Minimising witness trauma (interview played as evidence in chief)
- Reducing contamination by interviewer
s107 Evidence Act 2006
Alternative ways of giving evidence by a child witness
- In courtroom but unable to see defendant or other (screen)
- From place outside courtroom in NZ or other (CCTV)
- By video record made before hearing (DVD interview)
s103 Evidence Act 2006
Directions about alternative ways of giving evidence.
May me made on grounds of:
- Age or maturity
- Physical, intellectual, psychological, psychiatric condition
- Trauma suffered
- Fear of intimidation
- Linguistic or cultural background or religious beliefs
- Nature of the proceeding
- Nature of evidence expected to give
- Relationship of witness to any party in proceeding
- The absence or likely absence of witness from NZ
s105 Evidence Act 2006
Alternative ways of giving evidence
- In courtroom but unable to see defendant or other (screen)
- From place outside courtroom in NZ or other (CCTV)
- By video record made before hearing (DVD interview)
s121 Evidence Act 2006
Complainants evidence does not have to be corroborated
s35 Evidence Act 2006
Previous consistent statements rule - usually rebuttal evidence
s44 Evidence Act 2006
Evidence of sexual experience of complainants in sexual cases
- No evidence can be given/questions put to relating to sexual experience/reputation of the complainant with anyone other than defendant (unless permission granted by judge)
s87 Evidence Act 2006
Privacy as to witness’s precise address.
Must not be subject of any question or statement made.
Includes number/name of street and suburb.
s88 Evidence Act 2006
Restriction on disclosure of complainant’s occupation in sexual cases.
R v Forrest and Forrest
Best possible evidence to prove age
R v Cox
Consent is full, voluntary, free and informed. Freely and voluntarily given by a person in a position to form rational judgement.
R v Koroheke (consent)
Consent freely given, rather than submission to something unwanted by unavoidable
R v Gutuama
No reasonable person would think consent
R v Harpur
An attempt includes an act or omission constituting a substantial step in a course of conduct planned to culminate in the commission of the crime.
… independent acts, when viewed in isolation can be construed as prepatory, when they are viewed collectively, they can can take on a different context and therefore amount to a criminal attempt.
s131B(2) defence
Took reasonable steps to find out the YP was 16+ AND believed on reasonable grounds that 16+
R v Collister
Intent can be inferred from actions or words before/during/after, surrounding circumstances, and nature of the act
138(6)
Intellectual/mental/physical condition or impairment that affects capacity to:
- Understand the nature of sexual conduct or decisions about it
- Foresee consequences
- Communicate decisions
138(6)
Intellectual/mental/physical condition or impairment that affects capacity to:
- Understand the nature of sexual conduct or decisions about it
- Foresee consequences
- Communicate decisions
s132 non-defences
132(4) - not a defence that they believed the child was over 12
132(5) - consent is not a defence
