Sexual Offence Definitions

Question 1

Person

Answer 1

Proven by Judicial notice or circumstantial evidence.

Question 2

Rape (Verbatim)

CA.61 S.128(2)

Answer 2

A rapes B if A has sexual connection with B effected by the penetration of B’s genitalia by A’s penis-

a) without B’s consent to the connection AND
b) without believing on RG that B consents to the connection

Question 3

Penetration

Answer 3

Introduction to the slightest degree is enough to effect a connection.

Penetration = Introduction

Question 4

Proving penetration

Answer 4

1. Complainants evidence
2. Medical exam
3. Accused admission

Question 5

Genitalia

Answer 5

S.2
Includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (regardless of sex).
R V KOROHEKE
comprise the reproduction organs, interior and exterior … they include the vulva and labia, at the opening of the vagina.

Question 6

Consent

Answer 6

A persons conscious and voluntary agreement to something desired or proposed by another.
R v COX
Consent must be Full, voluntary, free and informed . . . freely and voluntarily given by a person in a position to a rational judgement.

Question 7

What makes sexual connection unlawful?

Answer 7

A B R
1. Subjective Test - Absence of Consent
The complainant did not consent to the sexual act (from complainants POV) AND
2. Subjective Test - Belief in Consent
The offender did not believe the complainant was consenting OR
3. Objective Test - RG for belief in Consent
If he did believe she was consenting the grounds for such belief were not reasonable

Question 8

R v GUTUAMA

Answer 8

Under the objective test the Crown must prove that “No reasonable person in the accused shoes could have thought that the complainant was consenting.”

(Walk in Guatama’s shoes).

Question 9

Unlawful Sexual Connection

CA.61 S128(3)

Answer 9

A has unlawful SC with B if A has SC with B

a) without B’s consent to the connection AND
b) without believing on RG hat B consents to the connection

Question 10

Sexual Connection

CA.61 S.2

Answer 10

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
ii) an object manipulated by another person
b) connection between the mouth or tongue of one person and a part of another person genitalia or anus
c) the continuation of connection in a kind described

Question 11

Dependant Family Member

CA.61 S.131A(1) (a)

Answer 11

For the purpose of s.131, A is a dependant of B if:
a) B has power or authority over A AND
i) parent,step parent, foster parent,
guardian, uncle/aunt OR
ii) parent, step parent or foster parent of
above OR
iii) a child of their parent or step parent OR
iv)spouse or de facto partner of a person in
i) ii) or iii)
b) they are members of the same family, whanau, or culturally recognised family group, and B:
ii) has a responsibility for, or a significant
role in, A’s upbringing
c) A is living with B as a member of the B’s family, and B has:
i) power or authority over him or her
ii) a responsibility for or significant role in A’s
care or upbringing

Question 12

How do you Prove Age?

Answer 12

R V FORREST AND FORREST
The best evidence possible in the circumstance should be adduced by the prosecution in proof of the victims age.

In practice usually birth certificate and independent evidence that identifies victim as person named, (ie parent).

Question 13

“Child” in relation to Crimes Act 1961

Answer 13

Person under 12 years.

Question 14

Indecency

Answer 14

INDECENCY:
Has sexual connotations and involves conduct directed at a person that is offensive to public moral values.
R V COURT
Conduct that right-thinking people will consider an affront to the sexual modesty of the complainant.

Question 15

“Young person” in relation to Crimes Act 1961

Answer 15

Person under 16 years.

Question 16

Indecent Assault definition

Answer 16

R V LEESON
Indecent assault is an assault accompanied with circumstances of indecency.

Prosecution must prove:

• Defendant intentionally assaulted the complainant
• Circumstances accompanying the assault were indecent
• Defendant intended the conduct that a reasonable person would find indecent

Question 17

What must the prosecution prove for Indecent Assault

Answer 17

-Intentionally assaulted victim
-circumstances were indecent
Intended the conduct, that a reasonable person would find indecent
If consent is an issue
-complainant did not consent
-Didn’t honestly believe complainant was consenting

Question 18

Is anal penetration rape?

Answer 18

No the anus is not covered withing the definition of genitalia, therefor non-consentual penile penetration of the anus is not rape. The charge is sexual violation by unlawful sexual connection S.128(1)(b)

Question 19

Genuine medical purposes

Answer 19

Some procedures involve penetration of a patients genitalia or anus by a doctor (cervical screen or prostate exam).If a doctor penetrates a patient on the pretense of medical necessity, when it is actually for sexual gratification, it may amount to sexual violation.

Question 20

Is penetration required for oral sexual connection?

Answer 20

No, any touching of a persons genitalia or anus with another persons mouth or tongue is sufficient to cause connection.

Question 21

Explain Continuation

Answer 21

Sexual activity is started consensually but consent is later withdrawn. There is an obligation to stop at the point the person realizes the other person is,or may be, no longer willing.

Question 22

Define Assault

Answer 22

The act of intentionally applying or attempting to apply force to the person of another directly or indirectly

or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on RG that he has present ability to effect his purpose.

Question 23

Intent - specific to S129(2)

CHECK FURTHER PG 35

Answer 23

the offender assaults the victim:
-in the hope that the complainant will them change their mind and consent to the act OR
-intending to commit SV regardlessof whether the complainant changes their mind.
CHECK THIS FURTHER WITH SOMEONE###

Question 24

Consent of a child

Answer 24

Consent of child is not a defense under S.132
COX V R
Although we do not exclude he possibility that a child of ten or eleven may be able to give a full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare.
(Simply because of age and sexual development, they do not understand the significance of the act, not legal consent.)

Question 25

Young person

Answer 25

a person under 16 years

Question 26

Consent of a young person

Answer 26

The courts have recognized that in some cases young people may be capable of giving legal consent to sexual activity, sufficient to provide a defense to a charge of sexual violation. It is a matter of common sense with all circumstances considered.

Question 27

Explain assault required, in relation to S.135

Answer 27

Requires proof of an assault.
Although it does not need to be forceful or violent, a gentle caress may suffice. May also include attempts an threats to apply force in circumstances of indecency.

Question 28

Explain consent in relation to S.135

Answer 28

The presence or absence of consent is a subjective test from the complainants point of view (S.128A applies).
The defendants honest belief in consent is sufficient even if it is not reasonable.

Question 29

Define Exploitative sexual conduct

Answer 29

a) sexual conduct 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 conduct by taking advantage of the impairment.

Question 30

Define a Significant Impairment

Answer 30

intellectual, mental, or physical condition or impairment that affects a person to such an extent that it significantly impairs the person’s capacity to:

a) Understand the nature of sexual conduct
b) Understand the nature of decisions about sexual conduct
c) Foresee the consequences of decisions about sexual conduct; or
d) Communicate decisions about sexual conduct.