Sexual conduct with a child under 12
Section 132 Crimes Act 1961
(1) Has sexual connection with a child.
(2) Attempts to have sexual connection with a child
(3) Does an indecent act on a child.
(4) Not a defence under this section that the person charged believed that the child was of or over the age of 12 years.
(5) Not a defence to a charge under this section that the child consented.
Sexual conduct with a young person under 16
S134 Crimes Act 1961
(1) Has sexual connection with a young person
(2) Attempts to have sexual connection with a young person
(3) Does an indecent act on a young person
Two main forms of sexual violation
- Sexual violation by rape S128(1)(a) CA 1961
- Sexual violation by unlawful sexual connection S128(1)(b) CA 1961
128B Sexual violation
Crimes Act 1961
(1) Every one who commits sexual violation is liable to imprisonment for a term not exceeding 20 years.
(2) A person convicted of sexual violation must be sentenced to imprisonment unless, having regard to the matters stated in subsection (3), the court thinks that the person should not be sentenced to imprisonment.
Consent definition
A person’s conscious and voluntary agreement to something desired or proposed by another.
Incest - Key Factors
S130 Crimes Act 1961
- Everyone 16 or over at the time is liable as principal offender
- The relationship AND the knowledge of the relationship
- Consent is no defence. Sexual connection in incest is with consent, if not, sexual violation is appropriate
- Step-parent and step-child not parent and child - S131 appropriate
Indecent Act
Act accompanied by circumstances of indecency.
Grounds for giving evidence in alternative way
S103(3) Evidence Act 2006
- Age and maturity
- Fear of intimidation
- Trauma suffered
- Absence or likely absence from NZ
- Physical/intellectual/psychological/psychiatric impairment
Alternative ways of giving evidence
S105 Crimes Act 1961
- In courtroom, but unable to see defendant or specified person
- From an appropriate place outside the courtroom, either in New Zealand or elsewhere
- By video record made before the hearing of the proceeding.
S28
Evidence Regulations 2007
Prosecutor must ensure a typed transcript of video used in proceedings is given to the defendant or the defendant’s lawyer as soon as practicable after the defendant has pleaded not guilty.
Four things victims should refrain from before medical exam
- No eating/drinking
- No washing/showering
- No washing hands or biting fingernails
- No going to toiltet. (If necessary use tox. kit to capture urine, ask fem victim not to wipe)
Actions to provide safe and secure environment for victim
CALM TEA
- Conduct dealings in sensitive manner
- Accept telling truth unless evidence to contrary
- Listen to what they tell you, even if venting feelings
- Establish whether they require medical attention
- Treat curteously
- Explain process and why asking certain questions
- Advise of local counselling available
Four police responsibilities to victims and their rights
- All obligations under VRA 2002 met and all contact recorded
- Must be given info on progress in their investigation within 21 days
- Must be kept updated of outcome, including no lines of enquiry and no charge + reason
- Advised of K9 and charge of offender ASAP.
Sufficiently proximate
- Lying in wait / searching for / following
- Enticing victim to scene
- Reconnoitering the scene
- Unlawful entry to structure/vehicle/enclosure
- Possession/collection or fabrication or materials
Advantages of visual recordings
- Greater quality and quantity
- Minimising trauma to witness by simplying process
AND
Having their interview played as ‘evidence in chief’ - Reduces contamination by interviewer by process of transposing interview into statement
- Means to refresh memory before court
Child or vulnerable adult (the victim) at risk
S195 & 195A Crimes Act 1961
Under sections 195 & 195A - child is a person under the age of 18 years.
195 - Ill treatment of child of vulnerable adult
- By person who has actual care of victim
- A staff member of hospital, institution, or residence where the victim resides.
195A - Failure to protect child or vulnerable adult
- Offender over 18 at the time
- Knows child or v.a. at risk
- Fails to take reasonable steps to protect
- Member of same household or staff at hospital, instituion, residence
Five signs present to remove child from house
Suffering, or likely to suffer
- Ill-treatment
- Serious neglect
- Abuse
- Serious deprivation
- Serious harm
CPP after interview
RUDEM
- Review impact of info disclosed
- Update OT on info disclosed
- Discuss protection concerns
- Ensure safety
- May need to adjust IJIP
Sexual exploitation of person with significant impairment
S138 Crimes Act 1961
(1) Has exploitative sexual connection with a person with a significant impairment.
(2) Attempts to have exploitative sexual connection with a person with a significant impairment.
(4) Does an indecent act on a person with a significant impairment.
(3) For (1)&(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.
Sexual conduct with consent induced by certain threats
129A Crimes Act 1961
(1) Has sexual connection with another person knowing that the other person has been induced to consent to the connection by threat.
(2) Does an indecent act on another person knowing that the other person has been induced to consent to the act by threat
(5) The kinds of threat referred to
(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 against or about whom the accusation or disclosure is made; and
(c) a threat that the person making the threat will make improper use, to the detriment of the person consenting, of a power or authority arising out of—
(i) an occupational or vocational position held by the person making the threat; or
(ii) a commercial relationship existing between the person making the threat and the person consenting.
S121 - Corroboration
Evidence Act 2006
Not necessary in a criminal proceeding for the prosecution evidence to be corroborated, except offences of—
(a) perjury
(b) false oaths
(c) false statements or declarations
(d) treason
S129
Crimes Act 1961
Attempted sexual violation and assault with intent to commit sexual violation
(1) Attempts to commit sexual violation
(2) Assaults another person with intent to commit sexual violation of the other person
Difference
- An attempt does not necessarily involve assault
- Assault with intent to CSV may not be suff. proximate to full offence to constitute an attempt
Significant impairment
138(6) Crimes Act 1961
Affects a person to such extent it significantly impairs the person’s capacity to:
(a) to understand the nature of sexual conduct; or
(b) to understand the nature of decisions about sexual conduct; or
(c) to foresee the consequences of decisions about sexual conduct; or
(d) to communicate decisions about sexual conduct.
