Sex Offences Flashcards
1
Q
Unlawful sexual connection (the definition not the liability)
A
non-consensual
penetration or oral connection with genitalia or anus
2
Q
Max penalty for rape/ULSC
A
20 years
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
4
Q
Define sexual violation
A
A person who:
- rapes
- has unlawful sexual connection
5
Q
Proof of penetration may be established by (3)
A
- complainants evidence
- medical examination, including physical injuries and DNA evidence
- the defendants admissions
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
7
Q
Penis includes
A
surgically constructed organ
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
9
Q
Yes or No
Anus is included within definition of genitalia
A
No
Reproductive organs only
10
Q
“Continuation” of act
A
Where sexual activity is started con sensually but consent is later withdrawn
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
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”
13
Q
When is consent relevant?
A
At the time the act actually took place
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
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
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.
17
Q
section, act and ingredients:
rape
A
Section 128, 1)a), CA 1961
Any person who
rapes
another person
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
19
Q
Person
A
Proved by judicial notice or circumstantial evidence
20
Q
Is age relevant under 128?
A
no
21
Q
Define rape
A
sexual connection by penetration of genitalia by penis
without consent AND without reasonable grounds for consent
22
Q
Can the offender be penetrated by the victims penis in 128(1)(a)?
A
No
23
Q
Can the offender be penetrated by the victims penis in 128(1)(b)?
A
Yes
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)
25
section, act and ingredients
Attempted sexual violation
Section 129 (1) CA 1961
Every one who
attempts to commit
sexual violation
26
section, act and ingredients
Assault with intent to commit sexual violation
```
Section 129(2) CA 1961
Everyone who
assaults
another person
with intent to commit sexual violation
of the other person
```
27
To be guilty of an attempt to commit an offence a person must:
(2 things)
- Intent to commit the offence and
| - Take a real and substantial step towards achieving that aim
28
What must the crown prove with an intent to commit sexual violation?
That the Defendant intended to commit the full act of sexual violation
Acted as he did for the purpose of achieving that aim
29
Define intent
Intent to commit the act and an intent to get a specific result
30
Define deliberate act
more than involuntary or accidental
31
Define 'intent to produce a result'
An intent to produce a specific result: an "aim, object or purpose"
32
Circumstantial evidence from which an offender's intent can be inferred
(3 things)
- offenders words and actions before, during and after the event
- the surrounding circumstances
- the nature of the act itself
33
With attempted sexual violation the Crown must prove at the time of the Defendant's conduct he:
(3 things)
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
34
R v Harpur
Attempt
An attempt includes a substantial step.
conduct may be viewed cumulatively.
Considering how much remains to be done...is always relevant, although not determinative
35
Assault with intent to commit sexual violation. There are two types of intent to this assault, what are they?
- 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
36
Situations where you might file a charge of assault with intent to commit sexual violation
-where an offender assaults with intent to gain consent
37
section, act, ingredients
Sexual connection with child under 12
Section 132 (1) CA 1961
Everyone
who has sexual connection
with a child
38
section, act, ingredients
attempted sexual connection with child
Section 132(2) CA 1961
Everyone
who attempts
sexual connection
with a child
39
section, act, ingredients
Indecent act on a child
Section 132(3) CA 1961
Everyone
who does an indecent act
on a child
40
r v cox
child consent
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
Child
person under 12 years
42
two best practice proof of age
Birth cert
independent witness IDing person
43
R v Forrest and Forrest
proof of age
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age
44
True or False
offender believed complainant was 12 or older
is a defence for 132
False
45
What is an indecent act with a child?
All forms of sexual activity with a child other than those that involve sexual connection
46
R V Court
Indecency
Conduct that right thinking people will consider an affront to the sexual modesty of the complainant
47
What is the objective test for indecency?
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
section, act, ingredients
Sexual connection with a YP
Section 134 (1) CA 1961
Any person
Has sexual connection
with a YP
49
section, act, ingredients
attempted sexual connection YP
Section 134(2) CA 1961
Any person
attempts
sexual connection
with a YP
50
section, act, ingredients
indecent act on YP
Section 134(3) CA 1961
Any person
does an indecent act
on a YP
51
What should you do to avoid the risk of acquittal if the precise age of the complainant at the time is in doubt?
File charges under both s132 and 134, or if necessary under 134 only
52
What is the defence to charge under s 134?
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
section, act, ingredients
Indecent assault
Section 135, CA 1961
Any person
indecently assaults
another person
54
R v Leeson
The definition of 'indecent assault' is assault accompanied with circumstances of indecency
55
With indecent assault, what 3 things must the prosecution prove?
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
What is the difference in the issue of consent between sexual violation and indecent assault?
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
section, act and ingredients
sexual connection knowing other person induced to consent by threat
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
section, act and ingredients
indecent act on another knowing other person induced to consent by threat
Section 129A(2) CA 1961
Every person
Does indecent act on another
knowing the other person has been induced to consent by threat
59
What are the kind of threats described by 'consent by threat'
threat of an offence punishable by imprisonment
threat of disclosure about misconduct
threat of abuse of power
60
section, act and ingredients
Incest
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
If a parent and child have consensual sex (both parties over 16) what is the appropriate charge?
Incest: consent is NOT a defence
62
If a child is adopted can the adoptive parents commit incest?
yes
63
If a child is adopted can the biological parents commit incest?
yes
64
Can a step parent of an adopted child commit incest?
No - appropriate charge is sexual connection with dependant
65
Can a step parent commit incest?
No- appropriate charge is sexual connection with dependant
66
Who has to prove that the defendant knew of the familial relationship at the time of incest?
The Crown
67
Section act ingredients
sexual connection with dependent family member under 18
Section 131 (1) CA 1961
everyone who
has sexual connection
with a dependent family member
under 18
68
section act ingredients
attempted sexual connection with dependent family member under 18
Section 131(2)
```
everyone who
attempts
sexual connection
with dependent family member
under 18
```
69
section act ingredients
indecent act on a dependent family member under 18
section 131(3)
everyone who
does an indecent act
on a dependent family member
under 18
70
section act ingredients
Sexual exploitation of person significant impairment
section 138(1) CA 1961
```
everyone who has
exploitative
sexual connection
with a person
with a a significant impairment
```
71
section act ingredients
attempted exploitative sexual connection with a person with significant impairment
section 138(2) CA 1961
```
everyone who
attempts
exploitative
sexual connection
with person
with significant impairment
```
72
section act ingredients
exploitative indecent act on a person with a significant impairment
section 138(4) CA 9161
```
everyone who
exploitative
does an indecent act
on a person
with significant impairment
```
73
If a person commits 132 or 134 outside NZ can they be prosecuted?
Yes, if the defendant is a NZ citizen
74
3 ways video recording of child interviews meets the child's needs
- 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
Whose responsibility is it to ensure a transcript of the DVD is prepared?
OC
76
Whose responsibility is it to ensure a child DVD transcript is checked against the tape for accuracy?
Specialist Child Witness Interviewer
77
Discuss the penalty provisions for sexual violation as set out in 128B of the CA 1961
The punishment for sexual violation is 20 years.
Imprisonment should always be imposed on conviction unless there are special circumstances
78
Discuss the 2 elements that need to be proved in a charge of assault with intent to commit sexual violation
assaulted the victim AND intended to commit sexual violation
79
Define consent
A persons conscious and voluntary agreement to something desired or proposed by another
80
What is 134A and discuss the stat defence
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
What is covered under sexual conduct with a child under 12?
Sexual connection with a child, attempted sexual connection with a child, does indecent act on child
82
Section, act, ingredients
Meeting a young person following sexual grooming
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
What is a defence for 131B?
- 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
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
Age and maturity of witness
Trauma suffered by witness
Witness fear of intimidation
85
Discuss the requirements under reg 28 of the evidence regulations 2007
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
List three ways under s105 that a witness may give evidence
- 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
It is important to preserve trace evidence in sexual assault cases. List four things that victims should refrain from before a medical exam
- 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
List the points that you would cover with a victim to explain the medical forensic examination procedure
- 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
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?
Be sensitive
Accept they are telling the truth
Listen
Explain what is happening
90
List the three areas to consider when determining “seriousness of physical abuse”as in does it meet CPP?
- The action of the abuse
- The injury inflicted
- The circumstances
91
List four police responsibilities to victims and their rights
- 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
Define “child abuse”
Harming (physically, emotionally, sexually) ill treatment, abuse, neglect or deprivation of any child or YP
93
In relation to child abuse investigations, define what the term “child-centred timeframes” means
Relevant to child’s age and cognitive development. The younger the child the quicker the response
94
Discuss the section of the evidence act that covers evidence of sexual experience of complainants
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
In adult sexual assault, what are the advantages of visually recording an interview?
- better quality and quantity of info
- minimising trauma
- reduce contamination through the process of writing a statement
- can refresh victims memory before court
