Sexual Offences

Question 1

R v Koroheke 28/11/01, CA 189/01

Answer 1

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 2

R v Cox 7/11/96, CA 213/96

Answer 2

Consent must be “full, voluntary, free and informed… freely and voluntarily given by a person in a position to form a rational judgment.”

Question 3

R v Gutuama 13/12/01, CA275/01

Answer 3

Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that [the complainant]
was consenting.”

Question 4

R v Koroheke 28/11/01, CA189/01

Answer 4

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 because she is frightened of what might happen if she does not give in or co-operate, is not true consent.

Question 5

R v Harpur (2010) 24 CRNZ 909

Answer 5

An attempt includes “an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

Question 6

R v Harpur (2010) 24 CRNZ 909

Answer 6

“[The Court may] have regard to the conduct viewed cumulatively up to the point when the conduct in question stops…the defendant’s conduct [may] be considered in its entirety. Considering how much remains to be done…is always relevant, though not determinative.”

Question 7

Cox v R 7/11/96, CA213/96

Answer 7

“Although we do not exclude the 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.”

Question 8

Cox v R 7/11/96, CA213/96

Answer 8

“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 ten or eleven year old girl has the experience or maturity to understand the nature and significance of the act.”

Question 9

R v Forrest and Forrest [1970] NZLR 545 (CA)

Answer 9

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

Question 10

R v Court [1988] 2 All ER 221

Answer 10

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

Question 11

R v Leeson (1968) 52 Cr App R 185 (CA)

Answer 11

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

Question 12

Section 128(4)?

Answer 12

A spouse who sexually violates their spouse has no legal defence due to the fact that the couple are legally married. (Pre 1986 a man may have had such a defence)

Question 13

Proof of penetration may be established by:

Answer 13

• the complainant’s evidence
• medical examination, including physical injuries and DNA evidence
• the defendant’s admissions

Question 14

Define Genitalia

Answer 14

Literally means: The organs of generation. Includes the penis and testicles of a male, and the vulva and vagina of a female. Does not include pubic hair or breasts.

CA (sec 2) Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female, or of indeterminate sex)

Question 15

Define Penis as per CA Sec 2

Answer 15

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 16

CA sec. 127

Answer 16

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

Question 17

Discuss the subjective/objective test in relation to consent making sexual connection unlawful

Answer 17

The Crown must prove that:

• the complainant did not consent to the sexual act (a subjective test) AND
• the offender did not believe the complainant was consenting (a subjective test) OR
• if he did believe she was consenting, the grounds for such a belief were not reasonable (an objective test)

Question 18

Circumstantial evidence from which an offender’s intent may be inferred can include:

Answer 18

• The offenders actions and words before, during and after the event
• the surrounding circumstances
• the nature of the act itself

Question 19

Discuss Recklessness and Consent

Answer 19

Recklessness as to whether the complainant is consenting or not is not consistent with having a reasonable BELIEF in consent.

Question 20

What are some examples that may constitute an attempt to commit an offence?

Answer 20

• lying in wait, searching for or following the contemplated victim. 
• enticing the victim to go to the scene of the contemplated crime
• possession, collection or fabrication of materials to be employed in the commission of the offence

Question 21

Define Consent

Answer 21

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

Ref. 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 judgment.” 

Question 22

What evidence might you use to prove a complainant’s age?

Answer 22

The complainant’s birth certificate in conjunction with independent evidence that identifies the complainant as the person named in the certificate. (Ideally a parent of the complainant).

Question 23

Defence - Mistake as to age of child?

Answer 23

There is no defence that the offender believed the complainant was 12 years of age or over. (Sec 132(4))

Question 24

What do you do if the precise age of the complainant is in doubt?

Answer 24

File charges under both S132 & S134, or if necessary under 134 only.

Question 25

Outline a defence to charge under S. 134.

The defendant must prove that before the time of the sexual activity:

Answer 25

• they had taken reasonable steps to ascertain that the young person was of or over the age of 16, and
• and at the time of the sexual activity they believed on reasonable grounds that the young person was of or over the age of 16, and
• The young person consented.

Question 26

When should level three specialist interviewers be used? 

Answer 26

Whenever possible with witnesses to, or complaints of, major offences. E.g homicides, sexual and serious assaults, aggravated robberies with firearms, kidnapping, abduction, and so on.

Question 27

What are some advantages of visually recording interviews?

Answer 27

• greater quality and quantity of information obtained
• minimising trauma to the witness by simplifying the process and having their interview played as their evidence in chief.
• reducing contamination by the interviewer through the process of transposing the interview into a statement
• providing a valuable means for the witness to refresh their memory before judicial proceedings

Question 28

List three ways under section 105 that a witness may give evidence

Answer 28

• while in the court room but unable to see the defendant or some other specified person; (screens) or
• from an appropriate place outside the court room, either in New Zealand or elsewhere (CCTV) or
• By a video record made before the hearing of the proceeding. (Video recording).

Question 29

List five 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 29

• the age or maturity of the witness
• the witness’ fear of intimidation
• the trauma suffered by the witness
• the nature of the evidence that the witness is expected to give
• the nature of the proceeding

Question 30

Discuss requirements under reg 28 of Evidence Regulations 2007

Answer 30

(1) The prosecutor must ensure a typed transcript of a working copy is given to the defendant or the defendants lawyer as soon as 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 the sub clause (1) has not been complied with

Question 31

What are the two priorities you must balance when investigating a sexual assault?

Answer 31

• undertaking the investigation as quickly as possible, and:

- meeting the complainant‘s physical and emotional needs. 

Question 32

What advice can you give victims prior to a medical examination in order to preserve trace evidence in sexual assault cases?

Answer 32

• no eating or drinking
• no going to the toilet - if absolutely necessary, use a toxicology kit to capture urine and ask female victim not to wipe)
• no washing or showering
• no washing of hands or biting fingernails

Question 33

What actions should you take when interacting with victims of sexual offences? (CALM TEA) 

Answer 33

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 34

Section 128A, CA 1961

Allowing sexual activity does not amount to consent in some circumstances

Answer 34

(1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.
(2) A person does not consent to sexual activity if 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) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious
(4) A person does not consent to sexual activity 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) A person does not consent to sexual activity 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) One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.
(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.
(8) This section does not limit the circumstances in which a person does not consent to sexual activity.
(9) For the purposes of this section -
allows includes acquiesces in, submits to, participates in, and undertakes sexual activity, in relation to a person, means -
(a) sexual connection with the person; or
(b) the doing on the person of an indecent act that, without the person’s consent, would be an indecent assault of the person.

Question 35

Complaint Types - Timeframes

Answer 35

Acute - Within 7 days of the sexual assault
Non-acute - At seven days or more after the sexual assault, but before six months.
Historic - After six months of the sexual assault

Question 36

Defences for 132 offences

Answer 36

132(4) - Not a defence that offender believed complainant was 12 or over.
132(5) - Not a defence that the child consented.

Question 37

What is the primary objective of a medical forensic examination?

Answer 37

The victim’s physical, sexual and mental health and safety.

Question 38

What must you explain to your victim regarding alternative means of evidence?

Answer 38

The prosecution must apply to the court to use the alternative means and it is the judges decision whether to allow this. Each application is considered on its merits and it’s not guaranteed the alternative means will be authorised

Question 39

What is the first and paramount consideration for child safety concerns received

Answer 39

Take immediate steps to secure the child’s safety and well-being

Question 40

What code must be entered in NIA for a report of concern about a child?

Answer 40

6C

Question 41

Section 131A

Answer 41

A) A person who has power or authority over the young person AND:
(i) is their parent, step-parent, Foster Parent, Guardian, Uncle, Aunty, or
(ii) A Parent, Step-parent or foster parent of (i), or
(iii) A child of his or her parent or step parent, or
(iv) The spouse or defacto spouse of any of (i) (ii) or (iii)
Or
(B) if they are members of the same family, whanau or other culturally recognised family group, and the other person is:
(i) is not a person refered to in paragraph a but:
(ii) Has a responsibility for or a significant role in his/her care or upbringing or
(C) if he or she is living with the other person as a member of the other persons family, and the other person is not a person described in paragraph A but has:
(i) power or authority over them and
(ii) has a responsibility for or a significant role in his or her care or upbringing.

Question 42

When is the offence of grooming completed?

Answer 42

Having previously met or communicated with a person under 16 on an earlier occasion, takes the following actions -

• intentionally meets the young person OR
• travels with intention to meet young person OR
• arranges or persuades the young person to travel with intention of meeting them AND
• at the time intends to take in respect of that young person an action that, if taken in NZ would be an offence against this Part or against s. a(1), d(1), e(1) or f(1) of S98AA(1), OR
• that the young person should do on him or her an act that would be an offence against this Part on his or her part.

Question 43

131B(2)

Answer 43

Defences to grooming.

• Before they took the action concerned they took reasonable steps to find out whether the person was of or over 16
• At the time they took the action, believed on reasonable grounds they were of or over 16

Question 44

Sexual Exploitation of Person With Significant Impairment. Act and Section and- When does the act become an offence?

Answer 44

Section 138, CA1961.

138(3)

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

Question 45

Coercion - 129A

Answer 45

(1) Sexual connection with another person knowing that they were induced to consent by threat.
(2) Indecent Act knowing person was induced to consent by threat.
(5)
(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 their reputation
(C) threat made by a person that they will make improper use, to the detriment to the person consenting, of a power or authority arising out of -
(i) an occupational or vocational position held by the person making the threat.
(ii) a commercial relationship existing between the person making the threat and the person consenting.

Question 46

S. 195A. Who does the offence apply to?

Answer 46

Age 18+
Members of the same household (don’t need to live together but frequent contact)
Hospital, residential or institutional staff at residence where victim resides

• (mens rea) Knows the victim is at risk of death/gbh or sexual assault as the result of an act or omission of another person
• (actus reus) Fails to take reasonable steps to protect the victim from that risk.

Question 47

Evidence Act 2006 - Section 44

Answer 47

Evidence of Sexual Experience in Complainants

44(1) In a sexual case no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than defendant, except with permission of the judge.
44(2) in a sexual case no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.
44(3) In an application for submission under subsection (1) The judge must not grant permission unless satisfied that the evidence or question is of sufficient direct relevance to the facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.

Question 48

Evidence Act 2006 - Section 87

Answer 48

Privacy as to Witnesses Precise Address

• no evidence or questions to witnesses regarding witness’ address.
• includes name and number of street and also name of town or community
• judge can approve if determined that they are directly relevant to the facts in issue and to exclude them would be contrary to the interests of justice.

Question 49

Define Assault

Answer 49

Assault means 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 reasonable ground that he has, present ability to effect his purpose.

Question 50

Define Indecent Act

Answer 50

An act that is ‘indecent’ has sexual connotations and involves conduct directed at a person that is offensive to public moral values.

Question 51

Sec. 134(6)(b)?

Answer 51

Doing an indecent act on a young person includes indecently assaulting the young person.

Question 52

Sec. 2 - Who does an indecent act?

Answer 52

A person doing an indecent act with or on another person

A person induces or permits the other person to do an indecent act with or on him or her.

Question 53

Explain the difference between Rape and ULSC

Answer 53

Rape is a specific form of sexual violation that involved the non-consensual penetration of the complainants genitalia by the offenders penis.

ULSC has a wider meaning and includes any form of non consensual penetration or oral connection with a persons genitalia or anus.

Question 54

R v Collister - What was held?

Answer 54

The defendants intent could be inferred from the circumstances

Question 55

What is the objective test for indecency?

Answer 55

Must be judged in light of the time, place, circumstances. Must be something more than trifling and be sufficient to warrant the sanction of the law. (R v Dunn)

Question 56

For the purposes of 195 and 195A. How old is a child?

Answer 56

Under 18 years

Question 57

128(b)

Answer 57

The punishment for sexual violation is a term of imprisonment not exceeding 20 years and imprisonment should always be imposed on conviction unless there are special circumstances which justify a departure from the rule.

Question 58

List four police responsibilities in regards to victims and their rights

Answer 58

• obligations under the victims rights act 2002 must be met and victim contacts must be recorded
• victims must be given information regarding progress of their investigation within 21 days
• victims must be updated and informed about the outcome of the investigation (including no further avenues of enquiry or reason for charges not being laid).
• as soon as offender arrested and charged - is it 29 offence? If so advise of their rights to register on VNR
• informed of outcome of case and property returned promptly

Question 59

What are child centred timeframes

Answer 59

Timeframes that are relevant to the child’s age and cognitive development (younger they are - more vulnerable and less able to recount details)

Question 60

What 3 things must the crown prove in relation to an indecent assault?

Answer 60

1. Defendant intentionally assaulted the complainant
2. The Circumstances accompanying assault were indecent
3. Defendant intended the conduct that a reasonable person would find indecent.

Question 61

What is included as “serious child abuse”

Answer 61

Sexual abuse
Serious wilful neglect
Serious physical abuse
Serious family violence where the child is a witness
All allegations made against OT approved caregiver alleging serious child abuse
All allegations made against OT or Police Staff alleging serious child abuse

Question 62

What are 3 areas to consider when determining whether physical abuse is serious and meets CPP threshold?

Answer 62

• the action of the abuse
• the injury inflicted
• the circumstances (factors of the case)

Question 63

What must the crown prove to determine consent was NOT present

Answer 63

• the victim did not consent OR
• the consent was not valid OR
• the defendant did not have reasonable grounds for believing the victim consented

Question 64

Section 59 - Parental Control - Public interest?

Answer 64

59(4) police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.

Question 65

A person is to be regarded as a member of a particular household even if?

Answer 65

He or she does not live in that household IF that person is so closely connected with the household that it is reasonable in the circumstances to regard him or her as a member of the household.

Question 66

Definition of child abuse

Answer 66

The harming (whether physically emotionally or sexually), ill treatment, abuse, neglect or deprivation of any child or young person.

Question 67

What is the purpose of a prelim interview?

Answer 67

To gain an understanding of what has occurred and determine:

• what further investigation actions are necessary
• whether an offence may have occurred
• whether the victim wishes to make a complaint

Question 68

Age at time of complaint - ASA or CPT?

Answer 68

18+ ASA

17 and under - CPT

Question 69

Define Sexual Abuse (Children)

Answer 69

Indecency with a child
Sexual Violation of a child
Using a child in sexual imagery

Question 70

Criteria for CPP?

Answer 70

Sexual abuse
Physical abuse
Neglect

Question 71

Info to give Dr. before medical exam?

Answer 71

Gender and age of victim
Injuries
Victims wishes re: gender of doc

When the assault occurred

Brief outline of circumstances
Alcohol or drugs involved?
Discuss if child medical more suitable

Question 72

Debrief with Dr. Following exam

Answer 72

• immediate needs of the victim (safety)
• verbally summarise the exhibits
• ID items for sending to ESR
• ID injuries requiring photographing
• ID any significant disclosures

Question 73

Feedback to ASA victim

Answer 73

Specialist support services available
Info about police investigation process
Realistic expectations about timings (e.g initial action, medical exam, formal interview, etc.)

Question 74

Define physical abuse

Answer 74

The actions of the offender result in or could result in physical harm or injury being inflicted on a child.

Question 75

Define Neglect

Answer 75

Not providing adequate food/shelter
Not protecting a child from physical harm/danger
Not accessing medical treatment
Allowing a child to be exposed to illicit drug manufacturing

Question 76

A sexual assault medical practitioners role is to:

Answer 76

Primary medical care
Provide examination reports
Provide unbiased expert evidence in court
Retrieve forensic medical evidence
Refer victims to follow up medical care

Question 77

Three initial steps OT and Police must follow:

Answer 77

1. Referral - info sharing
2. Consultation - discussion at appropriate levels
3. Agreement - on initial joint investigation plan (IJIP)

Question 78

What are the two intentions in Assault with intent to commit sexual violation

Answer 78

Intending the complainant will change their mind and consent
Or
Intending to commit rape or sexual connection regardless of whether the complainant changes their mind

Question 79

What to do at completion of child EVI

Answer 79

Update victim, update NIA contact node, refer to appropriate agencies, prepare transcript of interview and submit to court, consider another IJIP, report back any concerns

Question 80

Define reluctant consent

Answer 80

A true consent may be given reluctantly or hesitantly and may be regretted afterwards but if the consent given even in such a manner (provided it is without fear of the application of force or the result of actual or threatened force) then the act of sexual connection would not be rape.