Sexual Conduct with a Young Person Under 16

Question 1

Section and Penalty

Answer 1

Section 134(1), (2), or (3) CA61

10, 10, or 7 Years Imp

Question 2

Elements

Answer 2

• Everyone who
• (1) Has sexual connection with
• (2) Attempts to have sexual connection with
• (3) Does an indecent act on
• A young person

Question 3

Sexual Connection

Answer 3

S2 CA61

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 4

Penetration

Answer 4

S2(1A) CA61

Introduction and penetration have the same meaning. Introduction to the slightest degree is enough to effect a connection.

Question 5

Proof of penetration is required

Answer 5

Proof may be provided by:

• Complainants evidence
• Medical examinations (DNA, injuries)
• Accused’s admissions

Question 6

Genitalia

Answer 6

S2 CA61

Genitalia includes a surgically constructed or reconstructed organ, analogous to a naturally occurring male or female genitalia (whether the person concerned is male, female or of indeterminate sex).

Question 7

R v Koroheke

Genitalia

Answer 7

R v Koroheke

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

Question 8

Penis

Answer 8

S2 CA61

Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female or of indeterminate sex).

Question 9

Indecent Act

Legislation

For the purposes of this Act, one person does an indecent act on another person whether he or she—

Answer 9

S2(1B) CA61

For the purposes of this Act, one person does an indecent act on another person whether he or she—

(a) does an indecent act with or on the other person; or
(b) induces or permits the other person to do an indecent act with or on him or her.

Question 10

R v Court

Answer 10

Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant]”.

Question 11

Young Person

Legislation

Answer 11

S134(6) CA61

In this section,—
(a) young person means a person under the age of 16 years

Question 12

R v Forrest and Forrest

Proving Age

Answer 12

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”

In practice this generally involves producing the complainant’s birth certificate in conjunction with independent evidence that identifies the complainant as the person named in the certificate.

Question 13

Cannot be convicted

Legislation

Answer 13

S134(4) and (5) CA61

(4) No person can be convicted of a charge under this section if he or she was married to the young person concerned at the time of the sexual connection or indecent act concerned.
(5) The young person in respect of whom an offence against this section was committed cannot be charged as a party to the offence if the person who committed the offence was of or over the age of 16 years when the offence was committed.

Question 14

No Presumption because of Age

Legislation

Answer 14

S127 CA61

There is no presumption of law that a person is incapable of sexual connection because of his or her age.

Question 15

Statutory Defence

Legislation

Answer 15

Section 134A, CA61

(1) It is a defence to a charge under section 134 if the person charged proves that,—
(a) before the time of the act concerned, he or she had taken reasonable steps to find out whether the young person concerned was of or over the age of 16 years; and
(b) at the time of the act concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years; and
(c) the young person consented.

Question 16

Not a defence

Legislation

Answer 16

Section 134A, CA61

(2) Except to the extent provided in subsection (1),—
(a) it is not a defence to a charge under section 134 that the young person concerned consented; and
(b) it is not a defence to a charge under section 134 that the person charged believed that the young person concerned was of or over the age of 16 years.