Sex Offences

Question 1

Incapable of sexual connection - Section 127 CA 61

Answer 1

There is no presumption of law that a person is incapable of sexual connection because of his or her age.

Question 2

Sexual Violation - Section 128 CA 61

Answer 2

(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.

Question 3

Attempted sexual violation - Section 129 (1) CA 61

and

Assault with intent to commit sexual violation - Section 129 (2) CA 61

Answer 3

(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.

Question 4

Incest - Section 130 CA 61

Answer 4

(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

Question 5

Sexual conduct with dependent family member - Section 131 CA 61

Answer 5

(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.

Question 6

Dependent family member defined - Section 131A CA 61

Answer 6

(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

Question 7

Meeting young person under 16 following sexual grooming - Section 131B CA 61

Answer 7

(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.

Question 8

Defence to charge under Section 131B

Answer 8

(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 9

Sexual conduct with a child - Section 132 CA 61

Answer 9

(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

Question 10

Sexual conduct with a young person - Section 134 CA 61

Answer 10

(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.

Question 11

Section 134A - defence to charge under section 134

Answer 11

(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.

Question 12

Indecent assault - Section 135 CA 61

Answer 12

Everyone is liable to imprisonment for a term not exceeding 7 years who indecently assaults another person

Question 13

Define consent

Answer 13

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

Question 14

Define rape - Section 128(2) CA 61

Answer 14

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.

Question 15

Define genitalia - Section 2 CA 61

Answer 15

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)

Question 16

Define Penis - Section 2 CA 61

Answer 16

Penis includes a surgically constructed or reconstructed organ analogous to the naturally occurring penis (whether the person is male, female or indeterminate sex).

Question 17

Matters not constituting consent - Section 128A CA 61

Answer 17

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

Question 18

Subjective and objective test - reasonable grounds to believe in consent

Answer 18

1. Subjective test – absence of consent: What was the complainant thinking at the time, was she consenting?
2. Subjective test – belief in consent: If she wasn’t consenting, did the offender believe she was, what was the offender thinking at the time.
3. 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?

Question 19

Proving a complainants age

Answer 19

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.

Question 20

Define unlawful sexual connection - Section 128(3) CA 61

Answer 20

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

Question 21

Define Sexual Connection - Section 2 CA 61

Answer 21

(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)

Question 22

Introduction/penetration

Answer 22

Introduction to the slightest degree is enough to effect a connection

Question 23

Define young person - Section 134(6)(a) CA 61

Answer 23

(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

Question 24

Define child - Section 132(6)(a) CA 61

Answer 24

(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

Question 25

Define an indecent act

Answer 25

An act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values.

Question 26

Define indecent assault - R v LEESON

Answer 26

The definition of indecent assault is an assault accompanied by circumstances of indecency

Question 27

What was held in R v COX

Answer 27

Consent must be full, voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgement.

Question 28

What was held in R v KOROHEKE

Answer 28

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

Question 29

What was held in R v GUTUAMA

Answer 29

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.

Question 30

What was held in R v HARPUR

Answer 30

[The Court may]”have regard to the conduct viewed cumulatively up to the point when the conduct in question stops … the defendant’s conduct [may] be considered in its entirety. Considering how much remains to be done … is always relevant, though not determinative

Question 31

What was held in R v FORREST and FORREST

Answer 31

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.

Question 32

What was held in R v COURT

Answer 32

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