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Sex offences > Sex Offences > Flashcards

Sex Offences Flashcards

1
Q

Unlawful sexual connection (the definition not the liability)

A

non-consensual

penetration or oral connection with genitalia or anus

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2
Q

Max penalty for rape/ULSC

A

20 years

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3
Q

In all cases of sexual violation the crown must prove beyond reasonable doubt

A

there was an intentional act by the offender involving sexual connection with the complainant AND

The complainant did not consent 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

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4
Q

Define sexual violation

A

A person who:

  • rapes
  • has unlawful sexual connection
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5
Q

Proof of penetration may be established by (3)

A
  • complainants evidence
  • medical examination, including physical injuries and DNA evidence
  • the defendants admissions
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6
Q

R v Koroheke

Definition of genitalia

A

The genitalia comprise the reproductive organs, interior and exterior… they include the vulva and the labia, both interior and exterior, at the opening of the vagina

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7
Q

Penis includes

A

surgically constructed organ

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8
Q

True or false:

Anybody with a penis can rape

A

True. If they have a surgically constructed penis biological gender doesn’t matter

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9
Q

Yes or No

Anus is included within definition of genitalia

A

No

Reproductive organs only

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10
Q

“Continuation” of act

A

Where sexual activity is started con sensually but consent is later withdrawn

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11
Q

R v Cox

Definition of consent

A

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

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12
Q

R v Gutuama

objective test for consent

A

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”

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13
Q

When is consent relevant?

A

At the time the act actually took place

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14
Q

Allowing sexual activity does not amount to consent in some circumstances.

What section covers this and what are 5 examples?

A

128A CA 1961

  • If she does not protest/ offer physical resistance
  • She allows the activity because force was applied
  • she was asleep
  • she is so affected by alcohol/drugs she cannot consent or refuse
  • she is mistaken of the identity
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15
Q

R v Koroheke

Consent

A

Distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable.

E.g. submission by a woman because she is frightened of what might happen if she does not give in or cooperate is not true consent

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16
Q

Mental impairment:
If the threshold for sexual violation has not been met, but the defendant has taken advantage of the complainant’s vulnerability, what charge should be considered?

A

s138: sexual exploitation of a person with significant impairment.

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17
Q

section, act and ingredients:

rape

A

Section 128, 1)a), CA 1961

Any person who
rapes
another person

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18
Q

section, act and ingredients

unlawful sexual connection

A

Section 128, 1)b) ca 1961

Any person who
has unlawful sexual connection with
another person

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19
Q

Person

A

Proved by judicial notice or circumstantial evidence

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20
Q

Is age relevant under 128?

A

no

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21
Q

Define rape

A

sexual connection by penetration of genitalia by penis

without consent AND without reasonable grounds for consent

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22
Q

Can the offender be penetrated by the victims penis in 128(1)(a)?

A

No

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23
Q

Can the offender be penetrated by the victims penis in 128(1)(b)?

A

Yes

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24
Q

What distinguishes between attempted sexual violation and assault with intent to commit sexual violation?

A
  • An attempt to commit sexual violation does not necessarily involve an assault
  • An assault with intent to commit sexual violation may not be close enough to charge with an attempt (of sexual violation)
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25
Q

section, act and ingredients

Attempted sexual violation

A

Section 129 (1) CA 1961
Every one who
attempts to commit
sexual violation

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26
Q

section, act and ingredients

Assault with intent to commit sexual violation

A 
Section 129(2) CA 1961 
Everyone who 
assaults 
another person 
with intent to commit sexual violation 
of the other person
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27
Q

To be guilty of an attempt to commit an offence a person must:
(2 things)

A
  • Intent to commit the offence and

- Take a real and substantial step towards achieving that aim

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28
Q

What must the crown prove with an intent to commit sexual violation?

A

That the Defendant intended to commit the full act of sexual violation

Acted as he did for the purpose of achieving that aim

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29
Q

Define intent

A

Intent to commit the act and an intent to get a specific result

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30
Q

Define deliberate act

A

more than involuntary or accidental

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31
Q

Define ‘intent to produce a result’

A

An intent to produce a specific result: an “aim, object or purpose”

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32
Q

Circumstantial evidence from which an offender’s intent can be inferred

(3 things)

A
  • offenders words and actions before, during and after the event
  • the surrounding circumstances
  • the nature of the act itself
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33
Q

With attempted sexual violation the Crown must prove at the time of the Defendant’s conduct he:

(3 things)

A

Intended to have sexual connection AND

The complainant did not consent to the intended sexual connection AND

The defendant did not believe on reasonable grounds that the complainant was consenting

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34
Q

R v Harpur

Attempt

A

An attempt includes a substantial step.

conduct may be viewed cumulatively.

Considering how much remains to be done…is always relevant, although not determinative

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35
Q

Assault with intent to commit sexual violation. There are two types of intent to this assault, what are they?

A
  • In the hope that the complainant will then change their mind and consent to the act
  • intent to commit sexual violation whether the complainant changed their mind or not
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36
Q

Situations where you might file a charge of assault with intent to commit sexual violation

A

-where an offender assaults with intent to gain consent

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37
Q

section, act, ingredients

Sexual connection with child under 12

A

Section 132 (1) CA 1961

Everyone
who has sexual connection
with a child

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38
Q

section, act, ingredients

attempted sexual connection with child

A

Section 132(2) CA 1961

Everyone
who attempts
sexual connection
with a child

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39
Q

section, act, ingredients

Indecent act on a child

A

Section 132(3) CA 1961

Everyone
who does an indecent act
on a child

40
Q

r v cox

child consent

A

Don’t exclude the possibility that a child can give full, voluntary, free and informed consent to sexual intercourse.

The circumstances that would justify this would be exceptional and rare

41
Q

Child

A

person under 12 years

42
Q

two best practice proof of age

A

Birth cert

independent witness IDing person

43
Q

R v Forrest and Forrest

proof of age

A

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age

44
Q

True or False

offender believed complainant was 12 or older
is a defence for 132

45
Q

What is an indecent act with a child?

A

All forms of sexual activity with a child other than those that involve sexual connection

46
Q

R V Court

Indecency

A

Conduct that right thinking people will consider an affront to the sexual modesty of the complainant

47
Q

What is the objective test for indecency?

A

Must be judged in the light of the time, place and circumstances.

It must be something more than trifling, and be sufficient to “warrant the sanction of the law”

48
Q

section, act, ingredients

Sexual connection with a YP

A

Section 134 (1) CA 1961

Any person
Has sexual connection
with a YP

49
Q

section, act, ingredients

attempted sexual connection YP

A

Section 134(2) CA 1961

Any person
attempts
sexual connection
with a YP

50
Q

section, act, ingredients

indecent act on YP

A

Section 134(3) CA 1961

Any person
does an indecent act
on a YP

51
Q

What should you do to avoid the risk of acquittal if the precise age of the complainant at the time is in doubt?

A

File charges under both s132 and 134, or if necessary under 134 only

52
Q

What is the defence to charge under s 134?

A

The person charged proves that:

before the time of the act, he took reasonable steps to find out whether the YP was 16+ AND

at the time of the act he believed on reasonable grounds that the YP was of or over 16 AND

The YP consented

53
Q

section, act, ingredients

Indecent assault

A

Section 135, CA 1961

Any person
indecently assaults
another person

54
Q

R v Leeson

A

The definition of ‘indecent assault’ is assault accompanied with circumstances of indecency

55
Q

With indecent assault, what 3 things must the prosecution prove?

A

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

56
Q

What is the difference in the issue of consent between sexual violation and indecent assault?

A

Sexual violation: An honest belief in consent is not sufficient unless there are reasonable grounds for that belief

With indecent assault: an honest belief alone is sufficient even if not reasonable

57
Q

section, act and ingredients

sexual connection knowing other person induced to consent by threat

A

Section 129A (1) CA 1961

Every person
who has sexual connection
with another person
knowing that the other person has been induced to consent by threat

58
Q

section, act and ingredients

indecent act on another knowing other person induced to consent by threat

A

Section 129A(2) CA 1961

Every person
Does indecent act on another
knowing the other person has been induced to consent by threat

59
Q

What are the kind of threats described by ‘consent by threat’

A

threat of an offence punishable by imprisonment

threat of disclosure about misconduct

threat of abuse of power

60
Q

section, act and ingredients

Incest

A

Section 130(1) CA 1961

Sexual connection between
parent and child OR siblings
OR half siblings OR grand parent and grandchild
AND
the person charged knows of the relationship

61
Q

If a parent and child have consensual sex (both parties over 16) what is the appropriate charge?

A

Incest: consent is NOT a defence

62
Q

If a child is adopted can the adoptive parents commit incest?

63
Q

If a child is adopted can the biological parents commit incest?

64
Q

Can a step parent of an adopted child commit incest?

A

No - appropriate charge is sexual connection with dependant

65
Q

Can a step parent commit incest?

A

No- appropriate charge is sexual connection with dependant

66
Q

Who has to prove that the defendant knew of the familial relationship at the time of incest?

67
Q

Section act ingredients

sexual connection with dependent family member under 18

A

Section 131 (1) CA 1961

everyone who
has sexual connection
with a dependent family member
under 18

68
Q

section act ingredients

attempted sexual connection with dependent family member under 18

A

Section 131(2)

everyone who 
attempts 
sexual connection 
with dependent family member 
under 18
69
Q

section act ingredients

indecent act on a dependent family member under 18

A

section 131(3)

everyone who
does an indecent act
on a dependent family member
under 18

70
Q

section act ingredients

Sexual exploitation of person significant impairment

A

section 138(1) CA 1961

everyone who has 
exploitative 
sexual connection 
with a person 
with a a significant impairment
71
Q

section act ingredients

attempted exploitative sexual connection with a person with significant impairment

A

section 138(2) CA 1961

everyone who 
attempts 
exploitative 
sexual connection 
with person 
with significant impairment
72
Q

section act ingredients

exploitative indecent act on a person with a significant impairment

A

section 138(4) CA 9161

everyone who 
exploitative
does an indecent act 
on a person 
with significant impairment
73
Q

If a person commits 132 or 134 outside NZ can they be prosecuted?

A

Yes, if the defendant is a NZ citizen

74
Q

3 ways video recording of child interviews meets the child’s needs

A
  • child can clearly and freely state what did or didn’t happen
  • recorded interview can be used for the basis of an investigation
  • avoids need to re interview child for different purposes
75
Q

Whose responsibility is it to ensure a transcript of the DVD is prepared?

76
Q

Whose responsibility is it to ensure a child DVD transcript is checked against the tape for accuracy?

A

Specialist Child Witness Interviewer

77
Q

Discuss the penalty provisions for sexual violation as set out in 128B of the CA 1961

A

The punishment for sexual violation is 20 years.

Imprisonment should always be imposed on conviction unless there are special circumstances

78
Q

Discuss the 2 elements that need to be proved in a charge of assault with intent to commit sexual violation

A

assaulted the victim AND intended to commit sexual violation

79
Q

Define consent

A

A persons conscious and voluntary agreement to something desired or proposed by another

80
Q

What is 134A and discuss the stat defence

A

Sexual conduct with a YP

Defence:

  • the defendant took reasonable steps to establish the YP was aged 16 or over AND
  • the defendant charged believed on reasonable grounds the YP was aged 16 or over AND
  • the YP consented
81
Q

What is covered under sexual conduct with a child under 12?

A

Sexual connection with a child, attempted sexual connection with a child, does indecent act on child

82
Q

Section, act, ingredients

Meeting a young person following sexual grooming

A

Section 131B CA 1961

Any person
Having met or communicated with a person under 16
Meets the YP/travels with intent to meet YP/arranges for YP to travel with intent to meet them
And at the time of the action
Intends
To commit an offence against this part
Or have the YP commit an act on them that is an offence against this part

83
Q

What is a defence for 131B?

A
  • Before the time he or she took the action, s/he took reasonable steps to find out whether the YP was 16 or over
    AND
    -At the time he or she took the action concerned, he or she believed the YP was 16 or over
84
Q

List three grounds on which a direction can be made under s103(3) of the evidence act 2006 in regards to a witness giving evidence in an alternative way

A

Age and maturity of witness
Trauma suffered by witness
Witness fear of intimidation

85
Q

Discuss the requirements under reg 28 of the evidence regulations 2007

A

Prosecutor to give transcript to defence after defendant pleads NG

1) The prosecutor must ensure a typed transcript of a working copy is given to the defendant or the defendants lawyer as soon as practicable after the defendant has pleaded NG
2) The typed transcript is to be prepared by the police
3) The court may adjourn the hearing to allow further time for the defendant to consider the transcript if satisfied that sub clause (1) has not been complied with

86
Q

List three ways under s105 that a witness may give evidence

A
  • While in a courtroom but unable to see the defendant
  • From an appropriate place outside the court room (CCTV)
  • By a video record made before the hearing of the proceeding (video record)
87
Q

It is important to preserve trace evidence in sexual assault cases. List four things that victims should refrain from before a medical exam

A
  • No eating or drinking
  • No going to the toilet (if necessary, use a toxicology kit to capture urine and ask the female victim not to wipe)
  • No washing or showering
  • No washing hands or biting fingernails
88
Q

List the points that you would cover with a victim to explain the medical forensic examination procedure

A
  • Exam is conducted by a medical forensic practitioner
  • The benefits of a full exam (physical and also evidence to apprehend offender)
  • Expected time for the exam
89
Q

When interacting with victims of sexual offences, what actions should you take to provide a safe and secure environment in which they may regain some control of their lives?

A

Be sensitive
Accept they are telling the truth
Listen
Explain what is happening

90
Q

List the three areas to consider when determining “seriousness of physical abuse”as in does it meet CPP?

A
  • The action of the abuse
  • The injury inflicted
  • The circumstances
91
Q

List four police responsibilities to victims and their rights

A
  • All victim contacts must be recorded
  • Victims must be informed about progress within 21 days
  • Victims must be informed of outcome
  • Victims must be informed of case closure
92
Q

Define “child abuse”

A

Harming (physically, emotionally, sexually) ill treatment, abuse, neglect or deprivation of any child or YP

93
Q

In relation to child abuse investigations, define what the term “child-centred timeframes” means

A

Relevant to child’s age and cognitive development. The younger the child the quicker the response

94
Q

Discuss the section of the evidence act that covers evidence of sexual experience of complainants

A

Section 44:

Generally, no evidence or questions (except with the judge’s permission) can be put to the complainant about their sexual experience with any person other than the defendant

95
Q

In adult sexual assault, what are the advantages of visually recording an interview?

A
  • better quality and quantity of info
  • minimising trauma
  • reduce contamination through the process of writing a statement
  • can refresh victims memory before court

Sex offences (7 decks)

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