Sex Offences Flashcards
1
Q
Offence of rape
A
Section 128(1)(a) CA 61 20 years
- A person
- Rapes
- Another person
2
Q
Offence of unlawful sexual connection
A
Section 128(1)(b) 20 years
- A person
- Has unlawful sexual connection
- With another person
3
Q
Offence of attempted sexual violation
A
Section 129(1) CA 61 10 years
- Everyone
- Attempts to commit sexual violation
4
Q
Offence of assault with intent to commit sexual violation
A
Section 129(2) CA 61 10 years
- everyone
- assaults another person
- with intent to commit sexual violation of the other person
5
Q
Offence of sexual conduct with a child under 12
A
Section 132(1) 14 years
- Everyone
- Has sexual connection with a child
6
Q
Offence of attempted sexual conduct with a child under 12
A
Section 132(2) CA 61 10 years
- Everyone
- Attempts to have sexual connection with a child
7
Q
Offence of indecent act on a child
A
Section 132(3) CA 61 10 years
- Everyone
- Does an indecent act on a child
8
Q
Offence of sexual conduct with a young person under 16
A
Section 134(1) CA 61 10 years
- Everyone
- Has sexual connection with a young person
9
Q
Offence of attempted sexual connection with a young person
A
Section 134(2) CA 61 10 years
- Everyone
- Attempts to have sexual connection with a young person
10
Q
Offence of indecent act on a young person
A
Section 134(3) CA 61 7 years
- Everyone
- Does an indecent act on a young person
11
Q
Offence of indecent assault
A
Section 135 CA 61
7 years
- Everyone
- Indecently assaults another person
12
Q
Offence of incest
A
Section 130(2) CA 61 10 years
- Everyone
- Of or over the age of 16
- commits incest
13
Q
Offence of sexual conduct with a dependent family member
A
Section 131(1) CA 61 7 years
- Everyone
- Has sexual connection with a dependent family member under the age of 18
14
Q
Offence of attempted sexual conduct with a dependent family member
A
Section 131(2) CA 61 7 years
- Everyone
- Attempts to have sexual connection with a dependent family member under 18
15
Q
Offence of indecent act on a dependent family member
A
Section 131(3) CA 61 3 years
- Everyone
- Does an indecent act on a dependent family member under the age of 18
16
Q
Offence of meeting a young person, following or grooming
A
Section 131B CA 61
7 years
(1) (a) having met or communicated with a young person under 16 on an earlier occasion, he ot she takes one of the following steps;
- intentionally meets the young person
- travels with the intention of meeting the young person
- arranges for or persuades the young person to travel with the intention of meeting him or her
(B) at the time of taking the action he or she intends to;
- take in respect of the young person an action that would be an offence
- have the young person do on him or her an action that would be an offence
17
Q
Offence of sexual exploitation of a person with significant impairment
A
Section 138(1) CA 61 10 years
- Everyone
- has exploitative sexual connection with a person with a significant impairment
18
Q
Offence of attempted sexual exploitation of a person with significant impairment
A
Section 138(2) CA 61 10 years
- Everyone
- Attempts to have exploitative sexual connection with a person with a significant impairment
19
Q
Offence of exploitatively doing an indecent act on a person with a significant impairment
A
Section 138(4) CA 61 5 years
- Everyone
- Exploitatively does an indecent act on a person with a significant impairment
20
Q
Definition of rape
A
Non consensual penetration of the complainants genitalia by the offenders penis
Person A rapes person B if person A has sexual connection with person B effected by the penetration of person Bs genitalia by person As penis
(A) without person Bs consent
(B) without believing on reasonable grounds that person B consents to the connection
21
Q
Definition of unlawful sexual connection
A
Any form of non consensual penetration or oral connection with a person’s gentalia or anus
Section 2 CA 61 states connection effected by the introduction into the genitalia or anus of one person otherwise than for genuine medical purposes of;
- a part of the body of another person
- an object held or manipulated by another person
- connection between the mouth or tongue of one person and a part of another persons genitalia or anus
- the continuation of connection of a kind above
22
Q
What must be proved for a sexual offence complaint
A
- There was an intentional act by the offender involving sexual connection with the complainant
- The complainant did not consent to the sexual act
- The offender did not believe the complainant was consenting
- If the offender did believe the complainant was consenting the grounds for such a belief were not reasonable
23
Q
Section 128(4) defence
A
Before 1986 a man may have a spousal defence to sexually violating his wife
24
Q
Proof of penetration
A
Introduction of penis or object into the genitalia or anus to the slightest degree
Proven by;
- complainant evidence
- medical exam, including physical injuries and DNA
- defendants admissions
25
Case law R v Koroheke
The genitalia comprise of the reproduction organs, interior and exterior they include the vulva, the labia, both interior and exterior, at the opening of the vagina
26
Section 127 CA 61
There is no presumption of law that a person is incapable of sexual connection because of their age either too old or young
27
What is the subjective and objective test for consent
(Subjective) the complaiant did not consent to the sexual act
(Subjective) the offender did not believe the complainant was consenting
(Objective) if the offender did believe they were consenting the grounds for such a belief were not reasonable
28
What is consent and the relevant case law
A persons conscious and voluntary agreement to something desired or proposed by another
R v Cox
Consent must be full, voluntary, free and informed. Fully and voluntarily given by a person in a position to form a rational judgement
29
Case law R v Gutuama
Under the objective test the crown must prove that no reasonable person in the accuseds shoes could have thought that the complainant was consenting
30
Section 128A CA 61 - allowing sexual activity
1. A person does not consent to sexual activity just because he or she does not protest or offer physical resistance
2. A person does not consent to sexual activity if he or she allows it because of force applied to him or her or some other person, the threat (Express or implied) of the application of force to him her or some other person, the fear of the application of force to him her or some other person
3. A person does not consent to sexual activity if it occurs while they are asleep or unconscious
4. A person does not consent to sexual activity if they are so affected by alcohol or some other drug that he or she cannot consent or refuse consent
5. A person does not consent to sexual activity if they are affected by an intellectual mental or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse consent
6. A person does not consent to sexual activity because of a mistaken identity
7. A person does not consent to sexual activity if they allow the act because they are mistaken about the nature and quality
31
What is case law R v Koroheke in terms of consent
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
32
What are two points of intent
1. Deliberate act
| 2. Intent to produce specific result
33
What are circumstantial evidence
- surrounding circumstances
- offenders actions and words before, during and after the event
- nature of the act itself
34
What are 3 points of attempted sexual violation
1. offender itended to have sexual connection with the complainant
2. The complainant did not consent to the sexual act
3. The defendant did not believe on reasonable grounds that the complainant was consenting
To be guilty of an attempt the defendant must have progressed past the stage of preparation and started a process intended intended to lead to the commission of the full offence
35
What is case law R v Harpur in terms of attempt
1. An attempt includes an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime
2. The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. The defendants conduct may be considered in its entirety considering how much remains to be done is always relevant though not determinative.
36
What is assault
Means 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
37
What are the 2 types of intention with assault with intent to commit sexual violation
1. In a hope the complainant will change their mind and consent to the act
2. Intending to commit rape or sexual connection regardless of whether the complainant changes their mind
If only in hope complainant will change their mind may be charged with assault or indecent assault
38
Two times when you might file assault with intent to commit sexual violation
1. Where an offender assaults the complainant because they are intent on having intercourse with them and obtaining consent for it
2. As an alternative to a charge of attempted sexual violation (particularly where proximity between the assault and the completion of the intended sexual violation is an issue)
39
Section 132(4) defence
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
40
Section 132(5) defence
It is not a defence to a charge under this section that the child consented
41
What is case law R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age
42
What is indecent act
```
An act accompanied by circumstances of indecency
Immaterial whether;
- offender does the act
- the Child does the act
- the act is mutual
```
43
What is case law R v Court
Indecency means conduct that right thinking people will consider an affront to the sexual modesty of the complainant
44
What can you do if precise age of complainant is in doubt
Charged under both 132 and 134
45
Section 134A defence
It is a defence to a charge under section 134
If the person charged proves;
- before the time of the act he or she had taken reasonable steps to find out whether the young person was of or over the age of 16
- 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
- the young person consented
46
What is case law R v Leeson
The definition of indecent assault is an assault accompanied with circumstances of indecency
47
What must prosecution prove in a sexual offence
- the defendant intentionally assaulted the complainant
- the circumstances accompanying the assault were indecent
- the defendant intended the conduct that a reasonable person would find indecent
48
What does section 144A of the CA 61 allow
Prosecution of a NZ citizen who commits offence under section 132 or 134 outside NZ
49
What does section 44 Evidence Act 2006 state
No evidence or questions can be put to the complainant about their sexual experience with any person other than the defendant without judges permission
50
What is section 121 of the evidence act 2006
The complainants evidence does not have to be corroborated in sexual offences
51
What is veracity
Is the disposition of a person to refrain from lying, whether generally or in the proceeding
When conducting witness interview make sure they can provide all information about an incident including what complainant said to them about the incident
52
Advantages of visually recorded interviews
- greater quality and quantity of information
- minimizing trauma to the witness by simplifying the process and having their interview played as their evidence in chief
- reducing contamination by the interviewer through the process of transposing the interview into a statement
- providing a valuable means for the witness to refresh their memory before judicial proceedings
53
Why DVD interview meets a child's needs
- the interview process is focused on the child and allows them to state clearly and freely what if anything has happened according to the rules of evidence
- the recorded interview can be used for the basis of an investigation subsequent criminal prosecution and/or care and protection purposes
- it avoids the need to re-interview the child for different purposes
54
Using DVD interview as evidence in chief
The crown must apply to the court to use the alternative means and it's the judges decision whether to allow this
Section 107 provides direction about the way child complainants evidence is given
55
Who does Section 195A CA 61 failure to protect a child apply to
- members of the same household as the victim
- people who are staff members of any hospital, institution or residence where victim resides
Criminal liability will arise if such a person has frequent contact with a child or vulnerable adult and
- knows (mens rea) the victim is at risk of death, GBH or sexual assault as a result of the acts or omissions of another person and,
- fails (actus reus) to take reasonable steps to protect the victim from that risk
56
What needs to be proved for failure to protect a child
- child under 18
- defendant over age of 18
- the defendant by virtue of being a member of the same household as the victim or a staff member in a hospital or institution or residence where the victim resides had frequent contact with them and,
- the defendant had knowledge of the risk of harm to the child
57
What is frequent contact defined as
```
A person may be regarded as a member of a household even if they do not live in the same household but are so closely connected with the household
Consider;
- frequency of visits
- duration of visits
- familial relationship with complainant
```
It is a matter of fact for the jury
58
Two ways to help a successful outcome when investigating sexual assault
- undertake investigation as quickly as possible
| - meet complainants physical and emotional needs
59
What is a victim described as under section 4 victim rights act 2002
1. A person against whom an offence is committed by another
2. A person who through or by means of an offence committed by another person suffers physical injury, or loss of, or damage to, property
3. A parent or legal guardian of a child or young person who falls within 1 or 2 unless they are charged with, found guilty of or pleas guilty to the offence
4. A member of immediate family of a person who as a result of an offence committed by another dies or is incapable unless they are charged with, found or pleas guilty to the offence
60
How can you provide a safe and secure environment for a victim
1. Conduct your dealings in a sensitive manner
2. Accept they are telling the truth until evidence proves the contrary
3. Listen to what they tell you, giving them an opportunity to tell their account in their words even just to vent
4. Establish whether they require medical attention
5. Treat them courteously
6. Explain the process you are following and why you need to follow that process
7. Advise them of the local counseling services
61
What is the 12 point key process to an ASA
1. Initial actions on contact
2. Case referral
3. Provide specialist support
4. Preliminary interview
5. Information feedback
6. Medical examination
7. Formal interview
8. Investigation and evidence assessment
9. Resolution options
10. Prosecution
11. Final actions and record keeping
12. Preventative opportunities and responsibilities
62
What is the desired outcomes of ASAI policy and procedures
- enhance the welfare and safety of sexual assault victims by providing quality service, timely investigations and referral/access to specialist support services
- improve the investigation, resolution and management of adult sexual assault complaints
63
In relation to ASA all complainants will be investigated by;
1. A person specially trained as an ASA investigator and specialist adult witness interviewer unless there is a valid and documented reason why this is not possible
2. In a timely, fair and sensitive manner
64
What are police responsibilities in an ASA investigation
- criminal investigation and prosecution
- investigating reported complaints (priority to acute and high risk complainants) and when evidence is available prosecuting
- using ASA investigators and specialist adult witness interviewers during investigations unless there is a valid and documented reason why not
- coordinating support for the victim and cooperatively with individuals and groups that support victims including Maori and other ethnic groups and approved medical forensic practitioners
- providing advice and feedback to victims and their families throughout investigations and prosecution to help them understand, engage in the investigation and make informed decisions
65
Responsibilities of specialist sexual assault support groups
- ensuring the victim receives support throughout the investigation process including the medical exam investigative interviews and at court if case goes to trial
- offering/providing the victim ongoing support through counseling and therapy
- providing information to the victim about the investigation process and legal rights
- providing a link between police and victims
- referring the victim onto another appropriate support group or agency
- in situations/locations where no specialist sexual assault agency is available. Referral should be made to victim support for acute attendance
66
Responsibilities of specially trained sexual assault medical forensic practitioners
- providing primary medical care as well as the forensic and specific care required in sexual assault exams
- retrieving forensic medical evidence
- referring victims for follow up medical care
- providing examination reports to police and criminal prosecutions when necessary
- providing unbiased expert evidence to assist courts to interpret exam findings
67
What is the sexual abuse assessment and treatment service (SAATS) for
- provides expert medical treatment
- manage any immediate physical and emotional trauma
- address the immediate safety of victims
- ensure that forensics and medico legal requirements are met
68
What are the timings of an ASA complaint
Acute - upto 7 days
Non Acute - 7 days to 6 months
Historic - 6 months plus
69
What are the steps in the initial contact
- ascertain if the matter is of sexual nature
| - determine what immediate actions are required
70
What details should be obtained in an ASA complaint
- victims details and where abouts
- brief circumstances of alleged offence
- scene location
- offenders location, whereabouts, description
71
How to preserve trace evidence
Stop victims;
- eating or drinking
- going to the toilet (if necessary use a toxicology kit to capture urine and ask victims not to wipe)
- washing or showering
- washibg their hands or biting nails
- changing clothing
- smoking
- brushing or combing hair
- brushing teeth or rinsing their mouth
72
How can providing specialist support help the outcome
- greatly improves outcomes including the victims ability to give clear evidence, to stay engaged with investigative and criminal justice processes and to be seen as credible in court
- can have a major effect on how quickly and well victim recovers
- will assist in the prevention of revictimisation and prevention/minimization of both short and long term adverse psychological responses
73
What to do in preliminary interview
- Brief outline of facts
- victims safety
- public safety
- urgent investigation needs such as potential for loss of evidence, medical circumstances, suspects likely actions
74
What are the steps for a preliminary interview
- ensure victim is safe
- all necessary initial contact actions undertaken
- interview environment is comfortable and private
- if conducted at a police station it should be in a room not used by suspects
Ask what has happened
When it happened
Where it happened
Who is the offender
75
What are the two objectives of a medical forensic exam
Primary - victims physical, sexual and mental health
| Secondary - collect trace evidence
76
How long can a medical exam kit be held by doctor if no complaint
Upto 26 weeks
77
When to do a medical exam in acute case
Asap
| If within 3-4 days should still be conducted within 24 hours
78
What to explain to the victim before a medical exam
- exam will be conducted by a medical forensic practitioner specially trained in examining individuals who have been sexually assaulted
- has potential health benefits and can help police obtain evidence to apprehend/prosecute the offender
- expected duration of exam and if appropriate possible outcomes
- ask victim if concerns about gender of practitioner conducting the exam
79
What should you advise the medical practitioner for an ASA
- advise of age and gender of victim as it may impact on practitioner suitability
- advise when sexual assault is believed to have occurred
- give a brief outline of information known so far, including whether drugs involved and details of victims injuries, level of intoxication or other health concerns
- if relevant discuss victims wishes about gender ofexaming practitioner
- when necessary discuss whether a child's sexual assault complaint should be investigated using the ASA procedure
80
What does contacting medical practitioner prior to exam help determine
- best timing and approach for the exam
| - how to best meet the victims wishes regarding the examing practitioners gender
81
Before the MEK is sealed, what should officer discuss with medical practitioner
- advise of any immediate needs of the victim
- verbally summarise the exhibits and advise their possible significance
- advise whether any photos have been taken as part of exam
- identify any forensic items that may need to be taken to ESR ASAP for analysis to minimize loss of evidential benefits
- identify any injuries that should be photographed
- identify any significant disclosures made by the victim during the exam
Practitioner seals in officers presence and hands to police
82
Steps when conducting ASA victim formal interview
- explaining to victim the process and format of interview
- interviewing the victim using PEACE framework as it applies to witnesses requiring special consideration
- using a specialist adult witness interviewer where appropriate
- having different interviewer interview the victim and the suspect where possible
- with the victims consent making a support person available to the victim during the interview
- electronically recording the interview with potential for that interview to be a victims evidence in chief at any later hearing
83
Purpose of ASA case investigaton plans CIPS
- Ensures that all possible investigations angles are considered
- records the enquiries/considerations for the investigation and is updated as the investigation progresses, this may include reinterviewing witnesses (including the victim) following assessment of exhibits and other information
84
What should be asked about recent complaints or disclosure to witnesses by a victim
- circumstances in which the conversation has occurred
- what the victim said
- any questions the person asked the victim that might have elicited the complaint
- the victims demeanor and physical appearance
- their relationship with the victim
85
When planning a suspect initial approach what should you consider
- time of day
- location and situation
- investigators style and manner
- possible perceptions of the suspect and what they may interpret is occurring and follow up options
- intelligence holdings regarding previous police interactions and interviews
86
What to do if victim does not make a formal complaint
- record details for intelligence purposes
- police should fully investigate the initial complaint before deciding whether to take further action
- consider potential to prevent further victims
- consider whether to disclose source of information
- talk to the offender for the purpose of risk assessment (obtaining DNA profile) any interview with offender should also be considered for propensity evidence
- consider options with the offender as might be appropriate (such as advising public by way of community disclosure)
- unless there is credible evidence of a fabricated complaint should be k6
87
Factors to consider when deciding response to historic complaints
- likelihood of further, continued or connected offending
- victims ability to clearly recall events
- whether corroboration is available
- availability of other evidence and witnesses
- victims current circumstances and well being
- legal precedents
- offenders current situation
88
What are the rights of a child
- every child has the right to a safe and nurturing environment
- every child has the right to live in families free from violence
- every child has the right to protection from all forms of physical or mental violence injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in care of parents, legal guardians or any other person who has the care of the child
- every child has the right to protection from all forms of sexual exploitation and sexual abuse
89
What are 5 responsibilities to victims
1. All obligations under the victims rights act 2002 must be met and all contacts must be recorded
2. All victims must be given information about the progress of their investigation within 21 days
3. Victims must be kept updated, including no further avenues of enquiry or the reason for charges not being laid
4. As soon as offender is arrested and charged police must determine whether it is a s29 offence, if so inform victim of their right to register on the VNS
5. Victims must be informed of the outcome of the case and the case closure, any property belonging to the victim must be returned promptly
90
What are the OT time frames
Critical - 24 hours
Very urgent - 48 hours
Urgent - 7 days
91
What are the types of child abuse
- physical, sexual, emotional or psychological abuse
- neglect
- presence in unsafe environment
- cyber crime exploiting children
- child trafficking
92
What is the 10 step CPP process
1. Case management action, record incident, event or occurrence
2. initial attendance, safety assessment, consultation and initial joint investigation plan with OT, referrals to OT
3. Gather and process forensics
4. Assess and link case
5. Case management action
6. Investigate case
- interview victims and witnesses
- medical forensic exams
- evidence gathering and assessment
- consider appropriate strategies for mass allegations and online offending investigations
- interviewing suspects
7. Resolution decision/action
8. Prepare case
9. Court process
10. Case disposal and or filing
93
When would you remove a child
- it is not safe to leave them there or you believe on reasonable grounds that if left they will suffer or are likely to suffer I'll treatment neglect deprivation abuse or harm
- there is no other practical means of ensuring their safety
94
What powers of removal a child do you have
S42 OT Act 1989 (without warrant)
Critically necessary to remove child to prevent injury or death
S39 OT Act 1989 ( with a place of safety warrant)
S40 OT Act 1989 ( with a warrant to remove)
95
8 steps for a CPP referral
1. Review accuracy and quality of the information and any initial actions undertaken
2. Make initial assessment
3. Police and OT consult
- share information
- confirm if the referral meets the threshold of CPP
- discuss any immediate action required to secure the immediate safety of the child
- consider whether a multi agency approach is required
4. Agree on initial joint investigation plan
5. After case is confirmed CPP update NIA, prioritise and assign case
6. OT create a CPP record
7. Tasks in IJIP will be reviewed
8. If not a CPP case police will record in NIA reason police may continue to investigate
96
8 steps for a CPP referral
1. Review accuracy and quality of the information and any initial actions undertaken
2. Make initial assessment
3. Police and OT consult
- share information
- confirm if the referral meets the threshold of CPP
- discuss any immediate action required to secure the immediate safety of the child
- consider whether a multi agency approach is required
4. Agree on initial joint investigation plan
5. After case is confirmed CPP update NIA, prioritise and assign case
6. OT create a CPP record
7. Tasks in IJIP will be reviewed
8. If not a CPP case police will record in NIA reason police may continue to investigate
97
Purpose of an IJIP
To ensure that police and OT work together to secure the child's immediate safety and ensure any evidence is collected. OT will record the IJIP on nationally agreed template and forward a copy to police should be in 24 hours
98
What may the IJIP consider
- immediate safety of the child involved and any other children who may be identified as a risk
- referral to a medical practitioner and authority
- management of the initial interview with child
- If a joint visit is required due to risk of further offending loss of evidence likelihood of alleged offender being hostile or concerns for safety
- collection of physical evidence such as photos
- any further actions agreed for police and or OT including consideration as to whether a multi agency approach required
99
Types of cases for OT referral
1. Child abuse
2. Family violence
3. Environment/neglect
4. Other criminal activity
100
Medical forensic exam
Primary objective is the victims physical, sexual and mental health and safety. Secondary importance is opportunity to collect trace evidence
101
Non accidental injuries and serious neglect investigation points to consider
- offenders who inflict serious injuries to young children do not want to be seen as child abusers and admissions are difficult to obtain
- non offending parties are often bound by feelings of loyalty to perpetrators of violence against children
- there is often no evidence of planning or preparation to be obtained in the majority of cases violent acts are spontaneous
- most offenders do not actually intend to inflict the levels of harm suffered
- medical evidence can be imprecise with the injuries being difficult to time or date
- pre existing medical conditions may exist or other causes for injury and explanations be given e.g resus or shaking to revive or response to choking
- accident no intent to harm
- time frames may expand to include other suspects
