Sex Offences CIB-007

Question 1

1. List the two main forms of sexual violation.

Answer 1

The two forms of sexual violation are rape and unlawful sexual connection.

Question 2

2. Discuss the penalty provisions for sexual violation as set out in s128B of the Crimes Act 1961.

Answer 2

Section 128B of the Crimes Act 1961 outlines that the punishment for sexual violation is imprisonment for a term not exceeding 20 years, and imprisonment should always be imposed on conviction unless there are special circumstances that justify a departure from the rule

Question 3

3. Define the term ‘genitalia’.

Answer 3

S2 CA 61.
Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned to male, female or interdetermined sex).

Question 4

4. In negating consent, the Crown has to prove one of three things. List the three things.

Answer 4

In proving that consent was not present in a case of sexual violation, the Crown must prove that:

• The victim did not consent, or
• The victim’s consent was not valid, or
• The accused did not believe on reasonable grounds that the victim was consenting.

Question 5

5. Discuss the two elements that need to be proved in a charge of Assault with Intent to commit Sexual Violation, section 129 Crimes Act 1961

Answer 5

The two elements to be proved in the charge of attempt to commit sexual violation are that the offender:

• Assaulted the victim, and
• Intended to commit sexual violation.

Question 6

6. What is the definition of ‘consent’.

Answer 6

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

Question 7

7. Define ‘sexual connection’.

Answer 7

S2 CA 61
Sexual connection means–
(a) Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical 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 paragraph (a) or paragraph (b)

Question 8

8. Discuss the statutory defence for s134A – sexual conduct with a young person under 16 years.

Answer 8

There is a statutory defence for sexual conduct with a young person (s134A). This statutory defence applies only when:

• The person charged can show they took reasonable steps to establish the young person was aged 16 or over, and
• The person charged believed on reasonable grounds that the young person was aged 16 or over, and
• The young person consented to that sexual connection.

Question 9

9. Define 3 types of sexual conduct with a child under 12.

Answer 9

Sexual conduct with a child under 12 is:

• Sexual connection with a child;
• Attempted sexual connection with a child; and
• Does an indecent act on a child.

Question 10

10. Discuss whether a 16-year-old girl can be charged with having consensual sex with a 14-year-old boy.

Answer 10

Yes, the girl can be charged as it is the offence of sexual conduct with a young person under 16 years (s134 Crimes Act 1961).

Question 11

11. Define ‘indecent act’.

Answer 11

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

Question 12

12. 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.

Answer 12

Under s103(3):

(3) A direction under subsection (1) that a witness is to give evidence in an alternative way, may be made on the grounds of—
(a) The age or maturity of the witness
(b) The physical, intellectual, psychological, or psychiatric impairment of the witness
(c) The trauma suffered by the witness
(d) The witness’s fear of intimidation
(e) The linguistic or cultural background or religious beliefs of the witness
(f) The nature of the proceeding
(g) The nature of the evidence that the witness is expected to give
(h) The relationship of the witness to any party to the proceeding
(i) The absence or likely absence of the witness from New Zealand
(j) Any other ground likely to promote the purpose of the Act.

Question 13

13. Discuss the requirement under reg28 of the Evidence Regulations 2007.

X6 points

Answer 13

Prosecutor to give transcript to defence before preliminary hearing or defended summary hearing

(1) The prosecutor must ensure a typed transcript of a working copy is given to the defendant or the defendant’s lawyer,—
(a) If there is to be a preliminary hearing, at least 7 days before the date on which a video record is given in evidence at a preliminary hearing:
(b) If the defendant is to be tried summarily, as soon as is reasonably practicable after the defendant has pleaded not guilty.

(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.

Question 14

14. List three ways under s105 that a witness may give evidence.

Answer 14

The witness may give evidence:

(i) While in the courtroom but unable to see the defendant or some other specified person; (screens) or
(ii) From an appropriate place outside the courtroom, either in New Zealand or elsewhere; (CCTV) or
(iii) By a video record made before the hearing of the proceeding. (Video recording)

Question 15

15. It is important to preserve trace evidence in sexual assault cases. List four things that victims should refrain from (where possible) before a medical examination.

Answer 15

Remind the victim:

• 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 of hands or biting fingernails.

Question 16

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

Answer 16

Explain to the victim:

• That the examination will be conducted by a medical forensic practitioner specially trained in examining victims of sexual assault
• The benefits of a full medical forensic examination including:
  i. The potential benefit to their physical, sexual and mental health
  ii. how the examination can help Police obtain evidence to apprehend the offender
• The expected time for the examination and, if appropriate, possible outcomes of the examination.
• Ask the victim if they have any concerns about the gender of the practitioner conducting the examination and advise that you will do your best to accommodate their wishes. (Research indicates that most ASA victims identify gender as an issue and indicate a preference for examination by a female.)

Question 17

17. 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.

Answer 17

• Conduct your dealings in a sensitive and concerned manner.
• Accept they are telling the truth until/unless there is evidence to prove the contrary.
• Listen to what they tell you, giving them an opportunity to tell their account in their words, even to just vent their feelings.
• Establish whether they require medical attention.
• Treat them courteously.
• Explain the process you are following and why you need to follow that process and ask certain questions.
• Advise them of the local counselling services available.

Question 18

18. List the three areas to consider when determining “seriousness of physical abuse”.

Answer 18

There are three areas to consider in determining whether physical abuse is serious and therefore meets the threshold for referral as a CPP case under this protocol:

• The action of the abuse
• The injury inflicted, and
• The circumstances (factors of the case).

Question 19

19. List four Police responsibilities to victims and their rights.
    Victim rights:

Answer 19

o All obligations under the Victims’ Rights Act 2002 must be met and all victim contact must be recorded
o Victims must be given information about the progress of their investigation within 21 days
o Victims must be kept updated and informed of the outcome of the investigation, including no further avenues of enquiry or the reason for charges not being laid
o As soon as the offender is arrested and charged Police must determine whether it is a s29 offence. If so, the victim must be informed of their right to register on the Victim Notification System (if the victim wishes to do so)
o Victims must be informed of the outcome of the case and the case closure. Ensure any property belonging to the victim is returned promptly.

Question 20

20. Define “serious child abuse” and circumstances where Police would remove a child from a household.

Answer 20

Serious child abuse includes but is not limited to:

• Sexual abuse
• Serious physical abuse
• Serious wilful neglect
• Serious family violence where the child is a witness
• All allegations against Child, Youth and Family approved caregivers that involve serious child abuse
• All allegations against employees of Child, Youth and Family and the Police that involve serious child abuse.

Question 21

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

Answer 21

Child-centred timeframes are timeframes that are relevant to the child’s age and cognitive development. The younger the child the more vulnerable they are and therefore they require a quicker response.

As an example, for a 5-year-old, a week is a very long time for an event to be recounted with reliability. However, a 16-year-old would have less difficulty recalling the same event several weeks later.

Question 22

22. Explain Section 44 of the Evidence Act 2006

Answer 22

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.

However, s44(1) is subject to the propensity rule in s40(3). Evidence of the victim’s propensity to act in a certain way with the defendant, including sexually, may be offered as evidence but only if the judge grants permission.

Question 23

23. What three things must the Crown prove in relation to an Indecent Assault?

Answer 23

In these cases the Crown must prove that:

• The defendant intentionally assaulted the complainant
• The circumstances accompanying the assault were indecent
• a reasonable person would find the defendants conduct indecent.

Question 24

24. When is the offence of sexual exploitation of a person with a significant impairment complete?

Answer 24

For the purposes of subsections (1) and (2), a person has exploitative sexual connection with a person with a significant impairment (the “impaired person”) if he or she—

(a) Has sexual connection with the impaired person knowing that the impaired person is a person with a significant impairment; and
(b) has obtained the impaired person’s acquiescence in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment.

Question 25

25. When is the offence of sexual grooming complete?

Answer 25

The offence is complete when the parties meet, or the accused travels or makes arrangements to meet the complainant with the relevant intent. To be intentional the meeting need only be “purposely arranged”. This section is framed in gender-neutral terms.

Question 26

26. Explain Section 195A Crimes Act 1961 in relation to what is necessary to prove criminal liability for failing to protect a child.

Answer 26

Criminal liability is imposed in some situations where it is known a child (or vulnerable adult) is at risk of harm but where no action is taken.
The offence applies to:
- Members of the same household as the victim
- People who are staff members of any hospital, institution or residence where the 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, grievous bodily harm 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.

Question 27

27. Explain Section 87 of the Evidence Act 2006 in relation to the victim’s address:

Answer 27

Section 87 of the Evidence Act 2006 protects a witness from having to state their address and having questions put to them about that information. This includes not only the name and number of the street, but also the name of the town or community the witness lived in.
However, these details may be disclosed where the judge determines that they are directly relevant to the facts in issue and that to exclude them would be contrary to the interest of justice.

Question 28

28. Explain Section 129A (5) of the Crimes Act 1961 in relation to Sexual conduct with consent induced by certain threats:

Answer 28

(5) The kinds of threat referred to in subsections (3) and (4)(a) are—
(a) A threat that the person making the threat or some other person will commit an offence that—
(i) Is punishable by imprisonment; but
(ii) Does not involve the actual or threatened application of force to any person;

and

(b) A threat that the person making the threat or some other person will make an accusation or disclosure (whether true or false) about misconduct by any person (whether living or dead) that is likely to damage seriously the reputation of the person

and

(c) the person making the threat will use it to the detriment of the person consenting, of a power or authority gained from their occupation or commerical relationship with the complainant

Question 29

29. Discuss case law “R v Leeson”:

Answer 29

“The definition of ’indecent assault’ … is an assault accompanied with circumstances of indecency …”

Question 30

30. Under Section 131A of the Crimes Act 1961, what is the definition of a dependant family member?

Answer 30

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.

Question 31

31. Discuss Section 128A of the Crimes Act 1961 in relation to invalid consent:

Answer 31

Allowing sexual activity does not amount to consent in some circumstances

(1) Does not protest or offer physical resistance to the activity.
(2) He or she allows the activity because of—
(a) Force applied to him or her or some other person; or
(b) The threat (express or implied) of the application of force to him or her or some other person; or
(c) The fear of the application of force to him or her or some other person.
(3) If the activity occurs while he or she is asleep or unconscious.
(4) If the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
(5) If the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
(6) If he or she allows the sexual activity because he or she is mistaken about whom the other person is.
(7) If he or she allows the act because he or she is mistaken about its nature and quality

Question 32

If a male has sexual connection with his 18 year old home stay student is there any offence?

Answer 32

No offence committed as 18 years and over is not an offence

Question 33

When can a previous consistent statement be admitted?

Answer 33

As rebuttal evidence only

Question 34

How far out must a prosecutor give the transcpirt to the defence before the prelim hearing or defended hearing?

Answer 34

At least 7 days

Question 35

At what age does a file become a ASAT file?

Answer 35

when the victim is 17 years and older at the time of making the complaint

Question 36

Can a 17 year old uncle be charged with failing to protect a child?

Answer 36

• offender must be from same house hold or visit frequently.
• Must be over 18 years

C- 30 year old unlce who vists the address frequently

Question 37

what are the 3 categories of file in relation to ASA

Answer 37

Acute
Non acute
Historic

Question 38

A child under 12 years can give consent in rare and exceptinal circumstances?

Answer 38

R v COX
– The circumstances would justify conclusion would be exceptional if not rare. A child may know what sexual intercourse is, may indicate her agreement, her maturity and understanding of the act are inrare and exceptional circumstances.

Question 39

What is the principle differnence between rape and unlawful sexual connection?

Answer 39

Rape” is a specific form of unlawful sexual connection that involves the penetration of the complainant’s genitalia by the offender’s penis.

Question 40

What is the purpose of a preliminary interview?

Answer 40

The purpose of a preliminary interview is necessary for investigators to gain a better understanding of what has occurred and to determine:
• What further investigative actions are necessary
• Whether an offence may have occurred, and
• Whether the victim wishes to make a formal complaint.

Question 41

Is it an offence for an adoptive parent to have sexual intercourse with his 18 year old daughter?

Answer 41

Yes it is, an adoptive parent is a ‘parent’ thus incest.

Question 42

The mnemonic CALM TEA stands for:

Answer 42

• CONDUCT your dealings in a sensitive & concerned manner.
• ACCEPT they are telling the truth until/unless there is evidence to prove the contrary.
• LISTEN to what they tell you, giving them an opportunity to tell their account in their words, even to just vent their feelings.
• ESTABLISH whether they require Medical attention.
• TREAT them courteously.
• EXPLAIN the process you are following an why you need to follow that process and ask certain questions.
• ADVISE them of the local counselling services available.

Question 43

In section 128A, what are 2 mistakes listed?

Answer 43

• mistaken ID

* mistaken as to the nature and quality of the act

Question 44

What is the primary difference between the ‘force of application’ in 128 and 129

Answer 44

Section 128 a person does not consent to sexual activity if he or she allows the activity because of the fear of the application of force to him or her or some other in person.

Threats referred to in S.129 are a threat that the person making the threat or some other person will commit an offence punishable by imprisonment but does not involve the actual or threatened application of force to any person.

Question 45

Brother and sister (over 18) have sex, knowingly. Who can be charged?

Answer 45

Each party who was of or over the age of 16yrs at the time of the act is liable as a principle offender. Therefore both can be charged.

Question 46

What two things should you do after a CYP forensic interview?

R and U

Answer 46

REVIEW and UPDATE

• Review the impact of information disclosed.
• Update CYF on any information disclosed and discuss with them any care and protection concerns that may have arisen. It may be necessary to amend the initial joint investigation plan the ensure safety of the complainant, siblings or others.

Question 47

List 4 key points in relation to Sexual conduct with a dependent family member.

Answer 47

1- The dependant family member must be under 18 years
2- It is no defense if the dependant family member consents
3- The defendant must have power or authority over the dependant or responsibility or a significant role in their upbringing.
4- Includes guardians which are defined as being guardian by virture of the Guardianship Act 68 or CYF Act 89.