Sexual Flashcards
1
Q
In all cases of Sexual violation what must the crown prove beyond reasonable doubt?
A
That there was an intentional act by the offender involving sexual connection with the complainant AND
The complainant did not consent to the act AND
The offender did not believe that the complainant was consenting to the act or If the offender did believe the complainant was consenting the grounds for that belief were not reasonable.
Any investigation must prove either that the offender did not believe the victim was consenting and acted anyway or that he did believe the victim was consenting but the grounds for such beleif were not reasonable
2
Q
Explain section 128(4) CA61 in respect of spouses and liability
A
s.128(4) It shall be no defence to a charge under s.128 that the offender and victim were spouses at the time of the act.
3
Q
Define sexual violation
A
s.128 1) SV is the act of a person who: a) rapes another person b) has unlawful sexual connection with another person 2) Person A rapes Person B if PA has sexual connection with PB effected by the introduction of PA’s penis into the genitalia of PB a) without PB’s consent AND b) without believing on reasonable grounds that PB consented to the connection. 3) PA has unlawful sexual connection with PB if PA has sexual connection with PB a) without PB’s consent AND b) without believing on reasonable grounds that PB consents.
4
Q
Discuss sentencing requirements of Sexual Violation
A
everyone who commits sexual violation is liable for a sentence of imprisonment not exceeding 20 years. A person convicted of sexual violation must be sentenced to imprisonment unless having regard to the matters in sub section 3 the court thinks that the person should not be sentenced to imprisonment: s.128(3) matters are: a) the particular circumstances of the person convicted AND b) the particular circumstances of the offence; the nature of the conduct constituting it.
5
Q
define sexual connection
A
Sexual connection s.2 CA61 Sexual connection means: a) connection effected by the introduction into the genitalia or anus of a person other 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 and tongue of a person and the genitalia or anus of another person OR c) Any continuation of a connection of a kind described in subsection a or b.
6
Q
Discuss Introduction and penetration
A
In practise there is no real difference and it is not necessary to differentiate between the terms. s.2 For the purposes of paragraph a) in subsection 1) of ‘sexual connection’ introduction to the slightest degree is enough to effect connection. Penetration of the genitalia or anus must be proved although the extent of the penetration is not relevant, any degree of penetration no matter how slight or fleeting is sufficient.
7
Q
How can you establish penetration
A
Complainants evidence Medical examination including DNA and physical injuries Defendants admisions
8
Q
Define Genitalia
A
Genitalia s.2 CA61 genitalia includes the surgically constructed and reconstructed organs analogous to any naturally occurring male of female genitalia whether male, female or indeterminate sex.
9
Q
Define r v KOROHEKE (genitalia)
A
the genitalia comprise the reproductive organs interior and exterior, they include the vulva the labia interior and exterior at the opening to the vagina.
10
Q
Define Penis
A
s.2 CA61 Penis includes any surgically constructed or reconstructed organ analogous to any natural occurring penis whether male, female or indeterminate sex.
11
Q
Discuss ‘continuation’ R v KAITAMAKI and the obligation on a person to stop sexual activity
A
R v KAITAMAKI a man broke into a house a raped a woman twice he argued that it was only in the second act of intercourse did he realise she was not consenting and he continued regardless. The court held that once he penetrated the woman and realised she was not consenting but continues the act becomes rape. There is an obligation on a person to stop sexual activity at the point they realise the other person is or may be unwilling failure to do so may render a previously considered consensual activity unlawful.
12
Q
What must the crown prove in relation to consent? (tests)
A
Subjective test: victim did not consent to the sexual act AND the offender did not believe the victim was consenting AND Objective test: if he did believe the victim was consenting the grounds for such a belief were unreasonable.
13
Q
Define R v Cox re consent
A
R v Cox Consent must be full, voluntary, free and informed,freely and voluntarily given by a person in a position to form a rational judgement.
14
Q
Deine consent
A
Consent is a persons conscious and voluntary agreement to something desired or proposed by another.
15
Q
Define R v GUTUAMA
A
Under the objective test the crown must rove that no reasonable person in the accused’s shoes could have thought that the complainant was consenting.
16
Q
Outline the matters that don’t constitute consent:
A
A person does not consent to sexual activity:
- because they dont protest or offer physical resistance to the activity.
- they allow the activity because of force applied to him/her or another person, threat (expressed or implied) of the application of force to him/her or another person or fear of the application of force to him/her or another person.
- if they are asleep when the activity occurs.
- If they are so affected by alcohol or some other drugs that they cannot consent to the activity.
- if they are so affected by intelectual, physical or mental condition or impairment of such a nature and degree that they cannot consent or refuse to consent.
- If they allow the activity because they are mistaken as to the other persons identity.
- If they allow the activity because they are mistake as to its nature or quality.
- This section does not limit the circumstances in which a person does not consent to sexual activity.
17
Q
define r v Koroheke (true consent)
A
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. For example submission by a woman becuase she is frightened of what might happen if she does not give in or co-operate is not true consent.
18
Q
Define Rape
A
s.128 (2) PA rapes PB if PA has sexual connection effected by the penetration of PB’s genitalia by PA’s penis a) without PB’s consent AND b) without believing on reasonable ground that PB consents.
19
Q
What distinguishes Attempted Sexual violation and assault with intent to commit sexual violation
A
There may be some overlap between the two offences but they are distinguished on the basis that; an attempt does not necessarily involve an assault AND An assault may not be sufficiently proximate to the full offence to constitute and attempt.
20
Q
What is the definition of ‘Intent’ and how can it be proved?
A
In a criminal law context there are two specific types of intent to commit an offence, firstly an intent to commit an act and secondly an intent to get a specific result. Proved by: The defendants actions and words before, during and after the event The surrounding circumstances The nature of the act itself.
21
Q
What must the crown prove for the offence of attempted sexual violation?
A
At the time of the defendants actions they: intended to have sexual connection with the victim. AND The victim did not consent to the intended sexual connection. AND the defendant did not believe on reasonable grounds that the victim consented to the sexual connection intended. Establishing the defendant was reckless as to whether or not the victim was consenting satisfies the requirement that the belief was not reasonable.
22
Q
Define R v HARPUR in relation to attempts
A
An attempt includes an act or omission constituting a substantial step in the course of conduct planned to culminate in the commission of the crime. Th court may have regard to the actions of the defendant viewed cumulatively up to the point in which the conduct in questions stops. The defendants conduct may be viewed in its entirety, considering how much remains to be done is always relevant although not determinative.
23
Q
What are the ingredients of Assault with intent to Commit Sexual Violation?
A
S.192 CA61 10 years A person Assaults another person With intent to have sexual violation with that person. If the offender is only trying to change the victims mind to consent to having sexual connection that this charge applies.. If the offender is determined to have sexual connection and the assault is only a step in the process to that end then the appropriate charge is Attempted Sexual violation.
24
Q
When might you charge someone with Assault with intent to commit sexual violation s.192 CA61
A
when the offender is intent on having sexual connection with the victim and assaults the victim in order to obtain consent to do that. As an alternative to Attempted sexual violation particularly when the proximity between the assault and completion of the offence may be at issue.
25
In negating consent what three things must the crown prove?
that the victim did not consent. that the defendant did not believe the victim was consenting that if the defendant did believe the victim was consenting that the belief in such was not reasonable.
26
What is specified in s.132(6)(b) as NOT being defences to sexual conduct with a child under 12
The the defendant believed the child was 12 or over and that the child consented.
27
Define Indecent assault and penalty under s.132(6)
s.132(6) Everyone who commits an indecent assault on a child under 12 is liable to a term not exceeding 10 years. Doing an indecent act on a child under 12years includes indecently assaulting child under 12 years.
28
Define R v Cox in relation to a child providing consent
R v Cox Although we do not exclude the possibility of a child of 11 or 10 years old being able to provide full, voluntary, informed and free consent to sexual intercourse, the circumstances that would justify that conclusions would be exceptional if not rare.
In all but extremely rare cases it is not reasonable for an adult to believe a child was consenting to sexual activity
R v Cox Save in exceptional and rare circumstances even where she indicates an agreement to the act occurring no reasonable adult would have grounds for believing that a 10 or 11 year old girl has the experience or maturity to understand the nature and significance of the act
29
Define R v Cox in relation to a child and reasonable belief in consent.
In all but extremely rare cases it is not reasonable for an adult to believe a child was consenting to sexual activity
R v Cox Save in exceptional and rare circumstances even where she indicates an agreement to the act occurring no reasonable adult would have grounds for believing that a 10 or 11 year old girl has the experience or maturity to understand the nature and significance of the act.
30
Discuss proof of age
R v Forrest and Forrest the best possible evidence available int he circumstances should be adduced by the prosecution in proving the victims age. In practise this generally involves producing the victims birth certificate in conjunction with independent evidence identifying the victim as the person named.
31
Discuss 'consent' in relation to the offence of indecent act on a child (under 120 s.132(3)
If the act is done with the consent on the child it is immaterial whether; the child does the act on the offender the offender does the act on the child the acts are mutual.
Where the act is non consensual or consent is invalid the correct charge is indecent assault. s.132(6)(b)
32
Define indecency
An act that is indecent involves sexual connotations and involves conduct directed at a person that is offensive to public moral values
R v COURT indecency means conduct a right thinking person would consider an affront to the sexual modesty of the complainant.
33
Outline s.134 and penalties
s.134 Sexual conduct with a young person under 16 1) sexual connection with a young person (10 Years) 2) attempts to have sexual connection with a young person (10 years)\_ 3) does an indecent act on a young person (7 years) 4) No person may be convict if they were married to the young person at the time the act occurred. 5) the Young person cannot be charged as a party to of the offender was over 16 at the time of the act. 6)b) doing an indecent act on a young person includes indecently assaulting a young person
34
Outline s.132 and penalties
s.132 Sexual conduct with a child. 1) sexual connection with a child (14 years) 2) attempts sexual connection with a child (10 years) 3) does an indecent act on a child (10 Years) 4) it is not a defence that they believed the child was 12 or over. 5) It is not a defence that the child consented. 6)b) Doing an indecent act on a child includes indecently assaulting a child.
35
Outline a defence to s.134 CA61
It shall be a defence to s.134 sexual conduct with a young person under 16 if the defendant proves they: took reasonable steps to ascertain the young person was of or over 16 AND at the time of the offence believed on reasonable grounds the young person was of or over 16 AND the young person consented.
36
Ingredients; indecent Assault
s.135 Indecent Assault 7 years A person Indecently Assaults Another persoon
37
Define r v Leeson
R v Leeson the definition of indecent assault is an assault accompanied by circumstances of indecency.'
38
What must the prosecution prove for a charge under s.135
The defendant intentionally assault the victim AND the circumstances accompanying the assault were indecent. AND the defendant INTENDED the the conduct that reasonable people would find indecent.
39
If consent is raised as a defence to s.135 what must the prosecution prove:
That the victim did not consent That the defendant did not honestly believe the victim was consenting.
40
Discuss consent in relation to 135, 132(3) or 134(3) CA61
Consent is a defence to s.135 but not s.132(3) or 134(3)
41
Discuss the different standards of consent in 128 and 135
S.128 the belief in consent must be held and reasonable int he circumstances. s.135 the belief in consent must purely be HONESTLY held.
R v NORRIS if the defendant can prove that they honestly believed the victim was consenting they should be acquitted even though the ground for such a belief were unreasonable.
42
What is the nature of threat required for an offence against s.129A Sexual connection with consent induced by threat
An expressed or implied threat not involving force.
(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 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.
43
Define incest s.130
Incest s.130 1) sexual connection is incest if: a) it is between people whose relationship is that of parent and child, siblings, half-siblings or grandparent and grandchild. b) the person charged knows of the relationship. 2) everyone over the age of 16 who commits incest is liable to a term of imprisonment not exceeding 10 years. gender neutral consent is no defence (if no consent = rape) each party over 16 is liable as a principal offender.
44
Explain adoption in relation to liability to incest
If a person is adopted then their adoptive parents and natural parents are both parents as in s.130(1). If only one person is the adoptive parent and the spouse is not they are not liable as a parent but may liable to the offence of sexual conduct with a dependant family member. Similarly step-parents and step-children are not 'parents'
45
What is required to be proved for the charge of incest?
Sexual connection Relationship Knowledge of the relationship at the time of the connection and onus is on the prosecution to prove that
46
Define sexual conduct with a dependant family member
s.131 CA61 1) everyone is liable for a term of imprisonment not exceeding 7 years who has sexual connection with a dependant family member under 18. 2) Attempts - 7 years 3) Indecent act - 3 years 4) the dependant family member under 18 cannot be charged as a party 5) consent is not a defence
47
Define dependant family member s.131A
(1) (a) A person who is under the power and authority of someone who is a: (i) parent, step-parent, foster parent, guardian or uncle/aunt OR (ii) parent, step-parent or foster parent of someone described in (i) OR (iii) a child or step-child of his or her parent or step-parent. OR (iv) the spouse or defacto partner of a person described in (i)(ii) or (iii). OR (1)(b) A member of the same family, whanau or other recognised family group not referred to in (a) and has a responsibility or significant role in the care or upbringing of the dependant OR (1)(c) living with another person as a member of that other persons family who is not referred to in (1)(a) or (b) but has power or authority over the dependant and a responsibility or significant role in the care or upbringing of the dependant
48
What does the cron need to prove for a charge os s.131A Sexual conduct with a dependant family member
Sexual connection dependant is under 18 A relationship as described Power and authority over the dependant
49
Outline s.131B CA61
s.131B CA61 Meeting young person following sexual grooming 7 years (1)(a) having met or communicated with a person under 16 years of age on an earlier occasion takes one of the following actions; (i) intentionally meets the young person (ii) travels with the intention of meeting the young person (iii) arranges for or persuades the young person to travel with the intention of meeting him or her AND (1) (b) at the time of taking the travel they intend: (i) to take in respect of the young person an action that if taken in NZ would be an offence against this part or (any sexual exploitation offences) OR (ii) that the young person should do on him or her an act the doing of which in new zealand would be an offence against this part.
50
What are the defences to s.131B CA61 Meeting young person following sexual grooming
if a person proves that before he took the action had taken reasonable steps to find out whether the young person was of or over 16 AND at the time they took the action believed on reasonable grounds that the young person was of or over 16.
51
with respect to the offence of s.131B Meeting young person following sexual grooming where do the complainant and offender need to reside?
this offence applies where the offender or complainant are citizens or normally reside in NZ irrespective of whether the offence occurred in NZ.
52
When is the offence of s.131B complete?
when the parties meet OR the defendant travels OR the defendant makes arrangements to meet the complainant with the relevant intent to be intentional the meeting must be purposefully arranged.
53
What must the crown prove when a constable pretends to be a young person
That the defendant believed that the constable was under 16 years of age at the time they committed the act.
54
What is required to be proved for the offence of making an intimate visual recording?
the defendant made a recording within the definition of s.216G which requires an absence of consent. AND Intended to make the recording or had been reckless to every element of the definition.
55
Outline s.44(1) of the evidence act 2006
no question shall be put to a witness without the express permission of the court about the sexual experience of the victim with any person other than the defendant.
56
Outline s.44(2) evidence act 2006
No question shall be put to any witness without the express permission of the court that relates directly or indirectly to the reputation of the complainant in sexual matters.
57
Outline the protection of the complainants address and occupation in relation to sexual offences
s.87 protects a witness from having to state their address or have questions put to them about that information. s.88 protects a complainant from having questions put to them or any other witness, have evidence given or have statements or remarks made about their occupation. An application can be made to a judge to grant permission for the question, evidence, statement or remark to be made. A judge may permit the application if satisfied it is of direct relevance to the facts at issue and that to exclude it would be contrary to the interests of justice.
58
when may a previous consistant statement be admissable
when it is necessary to respond to a challenge to the witnesses veracity or accurateness, the challenge must be based on: A previous inconsistant statement of the witnesses. a claim that the witness recently invented evidence.
59
What are the advantages of visually recording evidence?
1. greater quality or quantity of information obtained
2. minimising trauma to the witness by simplifying the process and having their record presented as evidence on chief.
3. reducing contamination by the interviewer by the process of transposing the interview into a statement.
4. providing a valuable means to refreshing the witnesses memory prior to an judicial proceedings.
60
What is important to explain to a witness about the courts admitting evidence by alternate means?
that the crown must apply to the court to use the alternate means and it is the judges decision whether or not to allow this and each decisions is considered on its merits meaning there are no guarantees it will be allowed.
61
in respect of a witness video record what should be done for an adult and child witness prior to the trial?
Witnesses must be given the opportunity to view the video record before they testify in court. A child witness should meet the prosecutor and be shown the court room prior to giving evidence they should also be given the booklet; "being a witness going to court"
62
Discuss the responsibilities for dealing with video records?
OC must ensure a typed transcript is prepared and is accurate ensuring all noticeable non-verbal communication is recorded. The specialist child interviewer must check the transcript against the tape for accuracy and note this in their formal statement. A typed statement of the transcript must be given to the defendant or their counsel as soon as practicable after a not guilty plea or as soon as reasonably practical after a plea if the matter is to be tried summarily.
63
What are the grounds in which an application can be made for a witness to give evidence by alternate means
1. Age or maturity of witness 2. trauma suffered by witness 3. fear of intimidation 4. nature f the proceedings 5. nature of the evidence the witness is expected to give 6. relationship of the witness to any of the parties in the proceedings 7. the absence or likely absence of the witness fro NZ at the time of the proceedings.
64
List three alternate means of giving evidence
In the courtroom but unable to the defendant or other specified person (screen) from an appropriate place outside the courtroom either in NZ or another place (CCTV) By a video recording made prior to the proceeding or hearing
65
Define elements of Assault on a child
Assault on a Child s.194 CA61 everyone is liable to a term of imprisonment not exceeding 2years who: assaults a child being male assaults a female
66
Discuss s.59CA61 (parental control)
Police have discretion not to prosecute complaints of a parent using force on a child where the offence is considered so inconsequential it is not in the public interest to prosecute.
67
Who does the offence of ill-treatment or neglect of a child or vulnerable adult apply to: s.195 CA61
Ill treatment or neglect of child or vulnerable adult (10 years) both those who have actual care or charge of the child or vulnerable adult AND to those who are staff members of any hospital, residence or other institution where the child or vulnerable adult resides.
68
s.195A - 10 years Who does the offence of failure to protect a child or or vulnerable adult apply to:
members of the same household as the victim people who are staff members of the hospital, residence or other institution in which the child or vulnerable adult resides
69
When does liability for s.195A failure to protect child or vulnerable adult (10 years) arise?
liability will arise if such person by virtue of being a member of the same household of a staff member of a hospital, resience or institution the victim normally resides in has frequent contact with a child AND
knows that the child is at risk of death, GH or sexual assault as a result of the act or omissions of another person AND
fails to take reasonable step to protect the child from those risks.
Defendant of or over 18
child under 18
70
What is required to be proved in charge of s.195A failure to protect child or vulnerable adult (10 years)
child is under 18 at the time defendant of or over the age of 18 at the time the defendant had frequent contact with the victim by being a member of the same household or staff member of the hospital, residence or other institution the child resided at. Defendant had knowledge of the risk of harm to the victim
71
Describe the term 'same household' in s.195A CA61
A person may be regarded as living in the same household as the victim even if they dont live in the same household but are so closely connected to the household it is reasonable in the circumstances to regard them as a member of the same household. In determining this; regard must be had to the frequency and duration of the contact and whether there was a familial relationship with the victim and any other relevant matters. 'Same household' refers to the household in which the victim was living at the time the acts occurred. Does not apply to defendant under 18 at time of offence.
72
to preserve trace evidence during a ME what should you advise a victim to refrain fro doing
washing of hands and chewing or biting fingernails
smoking
Showering going to the toilet if they insist consider using a toxicology kit to collect the urine and ask females not to wipe
eating or drinking
washing hands
changing clothes
brushing or combing hair
73
what should you explain to a victim about a medical examination
1. it will be conducted by a medical professional specially trained to perform medical examinations on sexual assault victims
2. the benefits of a full examination including the sexual, physical and mental health of the victim AND how the examination could help the police to identify and apprehend the offender preventing further offending.
3. expected timeframes and outcomes of the examination.
4. ask the victim if they have any concerns about the gender of the medical professional and that you will do your best to accommodate their wishes.
74
list three areas to consider when determining the seriousness of child physical abuse
action of the abuse the injury inflicted and the circumstances (factors of the case)
75
List 5 responsibilities to the rights of victims
1. all obligations under victims rights act 2002 must be met and all victim contacts recorded
2. victims must be given information about the progress of their investigation within 21 days
3. victims must be kept updates as to the outcomes of any investigation including no lines of enquiry or the reason for no charges being laid
4. as soon as the offender is arrested or charged police must determine whether the offence is a s.29 offence and advise the victim of their rights to go on the VNR.
5. victims must be informed of the outcome of their case and case closure and the return of any property belonging to them
76
define 'child abuse' in the child young persons and their families act 1989
child abuse the harming (sexually, emotionally or physically) ill-treatment, abuse neglect or deprivation of any child or young person
77
in relation to child abuse investigations define child centred timeframes
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 the quicker the response required.
78
what is the primary objective of a medical examination
the victims safety and wellbeing is paramount. therefore the primary objective of a medical examination is the victims physical, sexual and mental health and safety. Of second importance is the opportunity to collect trace evidence to support the investigation
79
list the 12 key process points of the ASAI policy and procedures
1. Initial actions on contact
2. case referral
3. provide specialist support
4. prelim 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. prevention opportunities and responsibilities
80
Discuss the timing of a ME for acute complaints
A medical forensic practitioner must be contacted ASAP. Ideally a ME should be conducted within 24 hours.
81
What should you tell the medical forensic practioner
1. age and gender of the victim
2. when the assault is believed to have occurred
3. brief outline of the information given including whether drugs are involved,
4. level of intoxication ,
5. physical injuries,
6. health concerns
7. discuss victims wishes about gender of practitioner.
8. Where necessary discuss if a child sexual assault complaint should be investigated as an adult sexual assault complaint and vice-versa.
82
What should be discussed with the practitioner in the debrief following a medical examination
1. immediate needs of the victim
2. summary of exhibits and their possible significance
3. If any photographs have been taken
4. any forensic items that need to be taken to ESR urgently
5. any injuries that should be photographed.
6. any significant disclosures
all information discussed in the debrief should be recorded in the officers evidential statment.
83
in relation to recent complaint witnesses what details should be recorded
1. circumstances in which the conversation occurred
2. what the victim said
3. any questions the person asked the victim that may have elicited the complaint
4. the victims demeanour and physical appearance during the conversation
5. their association and relationship with the victim
84
what action should be taken when the victim choses not to make formal complaint
1. record details of case for intel purposes
2. fully investigate the initial complaint before deciding whether or not to take further action
3. consider the potential to prevent further victims
4. consider whether or not to disclose source of information
5. talk to offender for purpose of risk assessment,
6. consider taking DNA profile,
7. any interview should also be considered for propensity evidence.
8. consider options with offender as appropriate
9. unless there is credible evidence of a fabricated complaint consider resolving as a K6.
85
What are the requirements under s.28 of the evidence regulations act 2007
1) prosecutor must ensure a typed copy o a working copy of a statment is given to the defendant or their counsel: a) if there is to be a preliminary hearing at least 7 days prior to the date in which the evidence is to be presented in that hearing b) if the defendant is to be tried summarily as soon as is practicable after entering a NG plea.
2) The typed transcript is to be prepared by the police.
3) the court may adjourn the hearing to allow the defendant further time to consider the transcript if satisfied sub section 1 not complied with
86
What are the child youth and family timeframes
critical (24 hours)
no safety of care identified child
at risk of serious harm and requires immediate involvement to ensure safety.
Very Urgent (48 hours)
at risk of serious harm but some protective factors in place for at lest the next 48 hours.
However as present situation or need is likely to change high priority follow up is needed
Urgent (7 days)
at risk of harm or neglect
circumstances are likely to negatively impact on the child
options of saftey and support explored but remain unmet
vulnerability and pattern exists which limits protective factors
87
Discuss requirements around child records of interview when filing a case
Lawyers copy to be returned by defence OC must ensure lawyers copy held on file before file is filed Once master copy is presented in evidence the court will retain it for 10 years after the date in which the proceedings are determined and then destroy it.
88
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.
1. Conduct your dealings in a sensitive and concerned manner.
2. Accept they are telling the truth until/unless there is evidence to prove the contrary.
3. Listen to what they tell you, giving them an opportunity to tell their account in their words, even to just vent their feelings.
4. Medical attention; establish if needed
5. Treat them courteously.
6. Explain the process you are following and why you need to follow that process and ask certain questions.
7. Advise them of the local counselling services available.
89
Police can remove a child from a household where there is an allegation of serious child abuse, define serious child abuse:
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, CYF employees and Police employyess that involve serious child abuse -
90
When is the offence of sexual exploitation of a person with a significant impairment complete?
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.
91
outline offence sexual exploitation of person with significant impairment
s.138 CA61 10 years 1) liable to a term not exceeding 10 years who has exploitive sexual connect with a person with a significant impairment 2) liable to a term not exceeding 10 years who attempts to have exploitive sexual connection with a person with a significant impairment 3) a person has exploitative sexual connection with a person with a significant impairment if he or she (a) has SC with the impaired person knowing that the impaired person is a person with a significant impairment AND (b) has obtained the impaired persons acquiescence in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment
92
Define offence indecent act with person of significant impairment s.138 (4) CA61
s. 138 (4) CA61 5 years
4) liable to 5 years for exploitativly doing an indecent act with a person with a significant impairment
5) for the purpose of subsection 4 a person exploitively does an indecent act on an impaired person if he or she;
(a) does an indecent act on an impaired person knowing the person has a significant impairment AND
(b) has obtained the impaired persons acquiesces in, submission to, participation in or undertaking of the doing of the act by taking advantage of the impairment.
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define significant impairment
a significant impairment is an intellectual, mental or physical condition or impairment (or a combination of 2 or more intellectual, mental or physical conditions or impairments) that affects a person to such an extent that it significantly impairs the persons capacity
(a) to understand the nature of the 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
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Define liability element 'rape'
Sexual Violation by Rape s.128(1(a) CA61 20 years Rape s.128(2) CA61 PA rapes Pb if PA has sexual connection with PB effected by the introduction of PA's penis into PB's genitalia - (a) without PB's consent to the connection AND (b) without believing on reasonable grounds that PB consented to the connection. PENETRATION penetration and introduction have the same meaning Introduction to the slightest degree is enough to effect connection. There must be proof of penetration; penetration may be proven by: complainants evidence, defendants admissions medical examination including physical injuries and DNA evidence. GENITALIA Genitalia includes the surgically constructed and reconstructed organs analogous to any naturally occurring genitalia (whether male, female or indeterminate sex) R V KOROHEKE the genitalia comprise the reproductive organs interior and exterior including the vulva and labia both interior and exterior at the entrance to the vagina.
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Define liability ingredient 'consent'
Consent is a persons conscious and voluntary agreement to something proposed or desired by another. R v COX consent must be ful, voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgment. MATTERS THAT DONT CONSTITUTE CONSENT s.128A Not protesting or offering physical resistance. application, threat or fear of force to self or another, asleep or unconscious so affected by alcohol or drugs they cannot consent. So impaired by physical or mental impairment that they cannot consent. mistaken identity mistaken to nature and quality of the act REASONABLE GROUNDS there is a three step test for determining reasonable grounds for belief in consent: Subjective test Step 1 absence of consent. Did the complainant consent, what was she thinking Subjective test Step 2 belief in consent. If the complainant didn't consent did the offender believe she was consenting Objective test Step 3 reasonableness of belief in consent. If the offender believed the complainant was consenting was that belief reasonable in the circumstances. R v GUTUAMA under the three step test for determining belief in consent the crown must prove no reasonable person in the accused's shoes would have thought that the complainant was consenting.
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Define liability ingredient "does an indecent act" in relation to s.132(3)
Sexual conduct with a child (under 12) s.132(3) CA61 10 years Indecent Act an act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values. R v COURT Indecency means conduct a right thinking person would consider an affront to the sexual modesty of the complainant. If the child consents it is immaterial whether the child does the act on the offender, the offender does the act on the child, the acts are mutual.
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Define ingredient 'Indecent Assault'
Indecent Assault s.135(1) CA61 7 years R v LEESON An indecent assault is an assault accompanied by circumstances of indecency. INDECENCY An act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values. R V COURT Indecency involves conduct a right thinking person would consider an affront to the sexual modesty of the complainant.
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Outline s.195 CA61
195 ill treatment or neglect of child or vulnrable adult
1) liable for imprisonment not exceeding 10 years who being a perosn described in (2) intentionally engages in conduct that or omits to discharge or perfrom any legal duty the ommission of which is likly to cause suffering, injury, adverse effects to health, or any mental dissorder or disability to a child or vulnrable adult (victim) if the conduct engaged in or the ommission to perfrom a legal duty, is a major departure from the standard of care expected of a reasonable person;
2) the persons are:
(a) a person who has actual charge or care of the victim
(b) a person who is a staff member of any hospital, institution or other residence there the victim resides.
3) a child is a person under 18
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Define "significant impairment"
Sexual exploitation of person with significant impairment s.138 10/10/5
for the purpose of the act a significant impairment is an intellectual, mental or physical condition or impairment (or combination of two or more intellectual, mental or physical impairments or conditions) that affects a person to such an extent as to significantly impair their capacity:
a) to understand the nature of the sexual conduct OR
b) understand the nature of decisions about sexual conduct OR
c) understand the concequences of decisions about sexual conduct OR
d) to communicate decisions about sexual conduct
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Outline ingredients of sexual expolitation of person with significant impairment
(1) every person is liable to imprisonment not exceeding 10 years who has exploitative sexual connection with a person who has a signficant impairment.
(2) 10 years who attempts to have exploitative sexual conncection.
(3) a person has sexual connection with a person with a significant impairment if he or she:
(a) has sexual connection with the person knowing they have a significant impairment AND
(b) obtains the person acquience in, submission to, particpation in or undertaking in the sexual connection by taking advatage of the significant impairment.
(4) liable to term not exceeding 5 years imprisonment who does an inecent act with a person with a significant impairment.
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liability sections and penalties
Rape s.128(1)(a) 20
Unlawfull sexual connection s.128(1)(b) 20 years
Assault with Intnet to commit sexual violation s.129(2) 10 years
Incest s.130 10 years
Sexual conduct with dependant family member s.131A 10 years
Meting a young person following grooming s.131B 7 years
Sexual connection with a child s.132(1) 14 years
Attempted sexual connection with a child s.132(2) 10 years
Sexual conduct with a child s.132(3) 10 years
Sexual connection with Young person s.134(1) 10 years
Attempted sexual connection with a young person s.134(2) 10 years
Sexual conduct with a young person s.134(3) 7 years
Indecent assault s.135 7 years
Sexual Exploitation of person with significant impairment S.138 10 years
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Ingredients; meeting young person following sexual grooming s.131B 7 years
**_meeting young person following sexual grooming s.131B 7 years_**
having met or communicated with a young person on a previous occasion
intentionally mets with OR travels to meet with OR arranges for or persuades young person to travel with the intention of meeting them AND
at the time of the meeting intends to do with the young person that which if done in NZ would be an offence against this part OR that they should do an indecent act on the child or viceversa.
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discuss s.127 "no presumption of age"
there is no presumption of age, it would be no defence to say that a person is too young or too old to have sexual connection.
Any person of any age is capable in a legal sence to have a sexual connection
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Who does the ASAI policy apply to
to all cases of sexual offending where the complainant is of or over the age of 17 at the time of making the complaint
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What is the role of a specially trained forensic medical practioner?
1. primary medical care
2. retrieve forensic medical evidence
3. refer victims to follow up medical care
4. provide examination reports to police
5. provide unbiased exprt evidence in court
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what actions would meet the threshold for serious physical abuse
what injuries would meet the threshold for serious child physical abuse:
what should child protection cases be coded?
1. blow or kick to the head
2. shaking of infant
3. strangulation
4. use of an object as a weapon
5. attempted drowning
1. death
2. bnoe fracture
3. burn
4. concussion
5. any injury requiring medical attention
6. bruising or abbrasiaons where the child is very young and not mobile and capable of causing itself
6C
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If a child has disclosed sexual abuse allegations what should you do?
Do not ask any further questions gather the information from the adult
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A CYF referral in a case must be completed within what timeframes:
Imediatly in critical and very uergent cases (within 24 hours, prior to the cessation of the shift)
Within 2 full working days for urgent cases.
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An IJIP plan in a CPP case can help understand:
who is involved
what they will do
when they will do it
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what must an IJIP plan cover?
* child safety and well being
* any joint visits required
* management of victim initial interview and ethnic needs
* specialist child witness interview, interview of offenders and other witnesses.
* collection of evidence
* referral to medical practioner
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what does s.121 evidence act 2006 state in relation to corrboration
in cases of sexual nature the complainants evidence does not need to be corrborated
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discuss initial actins in an ASAI case
* ascertain complaint is of sexual nature
* determine what imediate actinos are required
* obtain victims details if it is reported by an other
* brief circumstances
* scene location
* offender description
Pending transfer to CIB
* ensure victims safety and imediate health
* consider other needs (child care)
* secure witnesses or suspects
* preserve crime scene
* any other actions as required
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what should you consider after a pre lim with a ASA victim
public safety and liklihood of similliar offending
the need to secure fragile and diminishing evidence
securing and containing the crime scene
identifying and locating witnesses
identification and/or apprehending the suspect
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after conducting the ME exam what does the practioner do:
seals and labels all samples with the victims name
bags seals and labels any items of clothing removed
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