Sex Offences Flashcards
Incapable of sexual connection - Section 127 CA 61
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
Sexual Violation - Section 128 CA 61
(1) Sexual violation is the act of a person who—
(a) rapes another person; or
(b) has unlawful sexual connection with another person.
(2) 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.
(3) 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.
Attempted sexual violation - Section 129 (1) CA 61
and
Assault with intent to commit sexual violation - Section 129 (2) CA 61
(1) Everyone who attempts to commit sexual violation is liable to imprisonment for a term not exceeding 10 years.
(2) Everyone who assaults another person with intent to commit sexual violation of the other person is liable to imprisonment for a term not exceeding 10 years.
Incest - Section 130 CA 61
(1) Sexual connection is incest if—
(a) it is between 2 people whose relationship is that of parent and child, siblings, half-siblings, or grandparent and grandchild; and
(b) the person charged knows of the relationship.
(2) Every one of or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 10 years
Sexual conduct with dependent family member - Section 131 CA 61
(1) Every one is liable to imprisonment for a term not exceeding 7 years who has sexual connection with a dependent family member under the age of 18 years.
(2) Every one is liable to imprisonment for a term not exceeding 7 years who attempts to have sexual connection with a dependent family member under the age of 18 years.
(3) Every one is liable to imprisonment for a term not exceeding 3 years who does an indecent act on a dependent family member under the age of 18 years.
(4) The dependent family member cannot be charged as a party to the offence.
(5) It is not a defence to a charge under this section that the dependent family member consented.
Dependent family member defined - Section 131A CA 61
(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.
(2)In subsection (1),—
aunt, in relation to a person, includes a half-sister of one of the person’s parents
foster parent includes a former foster parent
guardian—
(a) means guardian by virtue of the Guardianship Act 1968 or the Children, Young Persons, and Their Families Act 1989; and
(b) includes a former guardian
step-parent includes a former step-parent
uncle, in relation to a person, includes a half-brother of one of the person’s parents
Meeting young person under 16 following sexual grooming - Section 131B CA 61
(1) Every person is liable to imprisonment for a term not exceeding 7 years if,—
(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
(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.
Defence to charge under 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.
Sexual conduct with a child - Section 132 CA 61
(1) Everyone who has sexual connection with a child is liable to imprisonment for a term not exceeding 14 years.
(2) Everyone who attempts to have sexual connection with a child is liable to imprisonment for a term not exceeding 10 years.
(3) Everyone who does an indecent act on a child is liable to imprisonment for a term not exceeding 10 years
(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.
(6) In this section,—
(a) child means a person under the age of 12 years; and
(b) doing an indecent act on a child includes indecently assaulting the child
Sexual conduct with a young person - Section 134 CA 61
(1) Everyone who has sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.
(2) Everyone who attempts to have sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.
(3) Everyone who does an indecent act on a young person is liable to imprisonment for a term not exceeding 7 years.
Section 134A - defence to charge under section 134
(1) It is a defence to a charge under section 134 if the person charged proves 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.
Indecent assault - Section 135 CA 61
Everyone is liable to imprisonment for a term not exceeding 7 years who indecently assaults another person
Define consent
Consent is a person’s conscious and voluntary agreement to do something desired or proposed by another.
Define rape - Section 128(2) CA 61
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 consented to the connection.
Define genitalia - Section 2 CA 61
Genitalia includes a surgically constructed or reconstructed organ analogous to the naturally occurring male or female genitalia. (Whether the person concerned is male, female or indeterminate sex)
Define Penis - Section 2 CA 61
Penis includes a surgically constructed or reconstructed organ analogous to the naturally occurring penis (whether the person is male, female or indeterminate sex).
Matters not constituting consent - Section 128A CA 61
1) Not protesting or offering physical resistance to the activity
2) Allows because of the use of force to themselves or another, the threat of force to themselves or another, the fear of the application of force to themselves or another
3) Asleep or unconscious
4) So affected by alcohol or drugs as to be unable to consent or refuse consent
5) So affected by mental or physical impairment as to be unable to consent or refuse consent
6) Mistaken to identity of the other person
7) Mistaken as to the nature or quality
Subjective and objective test - reasonable grounds to believe in consent
- Subjective test – absence of consent: What was the complainant thinking at the time, was she consenting?
- Subjective test – belief in consent: If she wasn’t consenting, did the offender believe she was, what was the offender thinking at the time.
- Objective test – reasonable grounds for belief in consent: If the offender believed the complainant was consenting was that belief reasonable in the circumstances. What would a reasonable person have believed if placed in the same position as the defendant?
Proving a complainants age
In practice this generally involves producing the victim’s birth certificate in conjunction with independent
evidence that identifies the victim as the person named in the certificate.
Define unlawful sexual connection - Section 128(3) CA 61
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 consented to the connection
Define Sexual Connection - Section 2 CA 61
(a) Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medial 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; or
c) The continuation of connection of a kind described in paragraphs a) or b)
Introduction/penetration
Introduction to the slightest degree is enough to effect a connection
Define young person - Section 134(6)(a) CA 61
(a) young person means a person under the age of 16 years; and
(b) doing an indecent act on a young person includes indecently assaulting the young person
Define child - Section 132(6)(a) CA 61
(a) child means a person under the age of 12 years; and
(b) doing an indecent act on a child includes indecently assaulting the child
