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Tim Modules > Sexual Offences > Flashcards

Sexual Offences Flashcards

1
Q

R V Koroheke

A

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.

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2
Q

R v Gutuama

A

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”

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3
Q

R V Forrest & Forrest

A

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

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4
Q

R V Leeson

A

The definition of indecent assault is an assault accompanied with circumstances of indecency

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5
Q

R V Norris

A

If a person who is charged with indecent assault is able to establish that they honestly believed that the complainant was consenting, they are entitled to be acquitted even though the grounds of his belief were unreasonable.

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6
Q

R V Court

A

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

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7
Q

R V Dunn

A

Indecency must be judged in light of the time, place and circumstances. It must be something more than trifling, and be sufficient to “warrant the sanction of the law”

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8
Q

R V Harpur

A

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.

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9
Q

Sexual violation by rape

A

S128 (1)(a) CA 61
* A person
* Rapes
* Another person

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10
Q

Sexual violation by unlawful sexual connection

A

S128 (1)(b) CA 61
* A person
* Has unlawful sexual connection
* With another person

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11
Q

Assault with intent to commit sexual violation

A

S129 (2) CA 61
* A person
* Assaults
* Another person
* With intent to commit sexual violation of the other person

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12
Q

Sexual conduct with a child under 12

A

S132 (1) & (2) & (3) CA 61
* A person
(a) Has sexual connection
(b) Attempts to have sexual connection
(c) Does an indecent act
* (a) & (b) with a child (c) on a child

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13
Q

Sexual conduct with a young person under 16

A

S134 (1) & (2) & (3) CA 61
* A person
a) Has sexual connection
b) Attempts to have sexual connection
c) Does an indecent act
* (a) & (b) & (c) with a young person

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14
Q

Indecent assault

A

S135 CA 61
* A person
* Indecently assault
* Another person

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15
Q

In all cases of sexual violation, the Crown must prove beyond reasonable doubt that

A
  • There was an intentional act by the offender involving sexual connection with the complainant, and
  • The complainant did not consent to the sexual act, and
  • The offender did not believe the complainant was consenting, or
  • If the offender did believe the complainant was consenting, the grounds for such belief were not reasonable
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16
Q

Sexual violation defined

A
  • Rapes another person; or
  • Has unlawful sexual connection with another person.
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17
Q

Unlawful sexual connection defined

A

Non-consensual penetration of the genitalia or anus otherwise than for genuine medical reasons and excluding all forms that amount to rape. It, therefore, includes part of the body or object held or manipulated. Including connection between the mouth or tongue of another person’s genitalia or anus. The continuation of connection of a kind described.

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18
Q

Rape defined

A

Non-consensual penetration of the genitalia by the accused penis.

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19
Q

Penetration defined

A

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

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20
Q

Proving penetration

A
  • The complainant’s evidence
  • Medical examination, including physical injuries and DNA evidence
  • The Defendant’s admissions
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21
Q

Genitalia

A

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)

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22
Q

Penis

A

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

23
Q

Invalid Consent – DAMMIT FFS

A
  1. Does not protest or offer physical resistance to the activity
  2. Affected by alcohol or drugs
  3. Mistaken identity
  4. Mistaken nature and quality
  5. Intellectual, mental, or physical condition or impairment
  6. Threat of application of force to him or her or some other person
  7. Force applied to him or her or some other person
  8. Fear of application of force to him or her or some other person
  9. Asleep or unconscious
24
Q

Attempts to commit sexual violation.

Who must prove?

A
  • Intend to commit the offence, and
  • Take a real and substantial step towards achieving that aim.

The crown must prove that the Defendant intended to commit the full act of sexual violation, and acted as he did for the purpose of achieving that aim.

25
Q

Intent defined

A
  • A deliberate act,
  • With intent to produce a specific result
26
Q

Defence to charge under S134

In these cases, the prosecution must prove that?

A

Defence:
(a) They had taken reasonable steps to ascertain that the young person was of or over the age of 16
(b) 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
(c) The young person consented.

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

Issue with consent:
If the issue of consent is raised on the evidence the prosecution must prove beyond a reasonable doubt further two elements:
1. The complainant did not consent to the assault; and
2. The Defendant did not honestly believe the complainant was consenting

27
Q

Incest defined

A

Sexual connection is incest if:
(a) It is between 2 people whose relationship is that of parents and child, siblings, half-siblings, or grandparents and grandchild; and
(b) The person charged knows of the relationship

28
Q

Meeting young person … following sexual grooming, etc

A

Section 131B CA 61
(a) having met or communicated with a person under the age of 16 years on an earlier occasion, he or she takes on of the following actions:
(i) intentionally meets
(ii) travels with the intention of meeting
(iii) arranged for or persuades the YP to travel with the intention of meeting him or her; and
(b) at the time of taking the action, he or she intends
(i) to take in respect of the YP an action that, if taken in NZ, would be an offence against Part, or against any of paragraphs (a)(i), (d)(i), (e)(i), (f)(i), of section 98AA(1); or
(ii) that the YP should do on him or her an act the doing of which would, if he or she permitted it to be done in NZ, be an offence against this Part on his or her part.

29
Q

Dependent family member defined

A

Section 131A CA 61
(a) If the other person has power or authority over him or her and is:
(i) his or her parents, step-parents, foster parents, guardians, uncle, or aunt.
(ii) A parent, step-parent, or foster parent of a person described.
(iii) A child of his or her parent or step-parent; or
(iv) The spouse or de facto partner
(b) If they are members of the same family, whanau, or other culturally recognised family group, and the other person:
(i) is not a person referred to in paragraph (a); but
(ii) has a responsibility for, or significant role in, his or her care or upbringing; or
(c) if he or she is living with the other person as a member of the other person’s family, and the other person is not a person referred to in paragraph (a), but has
(i) power or authority over him or her; and
(ii) a responsibility for, or significant role in, his or her care or upbringing.

30
Q

Meeting young person following grooming

A

Section 131B CA 61
Having met or communicated with a person under the age of 16 years on an earlier occasion, he or she takes one of the following actions:
* Intentionally meets the young person
* Travels with the intention of meeting the young person
* Arranges for or persuades the young person to travel with the intention of meeting him or her; and
At the time of taking the action, he or she intends
* To take in respect of the young person an action that, if taken in NZ, would be an offence against this Part, or against any of paragraphs (a)(i), (d)(i), (e)(i), (f)(i), of sections 98AA(1); or
* That the young person should do on him or her an act the doing of which would, if he or she permitted it to be done in NZ, be an offence against this Part of his or her part.

31
Q

Sexual exploitation of person with significant impairment

A

Section 138 CA 61
A person has exploitative sexual connection with a person with significant impairment if he or she:
* Has sexual connection with the impaired person knowing that the impaired person is a person with significant impairment; and
* Has obtained the impairment person’s acquiescence in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment.
A person exploitatively does an indecent act on a person with a significant impairment if he or she:
* Does an indecent act on the impaired person knowing that the impaired person is a person with a significant impairment; and
* Has obtained the impaired person’s acquiescence in, submission to, participation in, or undertaking of the doing of the act by taking advantage of the impairment.

32
Q

Sexual conduct with children and YP outside NZ

A

Section 144A CA 61
Does outside NZ with under 12, 16, and 18 years of age. Sexual connection, attempts, indecent acts.

33
Q

Prohibition on making a visual recording

A

S216H CA 61
A recording with the absence of consent, but also intended to make such a recording or have been reckless as to every element of the definition.

34
Q

Complainant protection

A

S44 Evidence Act 2006
Generally, no evidence or questions (except with the judge’s permission) can be put to the complainant about their sexual experience with any person other than the Defendant.

35
Q

Witness protection

A

S87 Evidence Act 2006
In any proceeding, the precise particulars of a witness’s address may not, without the permission of the judge by subject to question, or included in any statement or remark made by a witness, lawyer, officer or the court, or any other person.

36
Q

Restrictions on Complinant’s occupation

A

S88 Evidence Act 2006
Restriction on disclosure of complainants’ s occupation in sexual cases and protects a complaint from having questions put to them or to another witness about the complainant’s occupation unless permission of the judge.

37
Q

Complainant’s evidence

A

S121 Evidence Act 2006
The complainant’s evidence does not have to be corroborated.

38
Q

Advantages of visually recorded interviews

A
  1. Greater quality and quantity of information obtained
  2. Minimizing trauma to the witness by simplifying the process and having their interview plated as their evidence in chief
  3. Reducing contamination by the interviewer through the process of transposing the interview into a statement
  4. Providing a valuable means for the witness to refresh their memory before judicial proceedings.
39
Q

S103(3): A witness is to give evidence in an alternative way, which may be given on the grounds of RAINNCOAT F

A
  1. Age K
  2. Physical, intellectual, psychological or psychiatric impairment of the witness K
  3. Trauma suffered
  4. Fear of intimidation
  5. Cultural or religious background
  6. Nature of proceeding
  7. Nature of evidence
  8. Relationship to any party to the proceeding
  9. Absence or likely absence of the witness
  10. Any other ground likely to promote the purpose of the act.
40
Q

Requirements under S28 Evidence Act 2006

A

Prosecutor to give transcripts to defence after Defendant pleads not guilty
1. The prosecutor must ensure a typed transcript of a working copy is given to the defendant or lawyer.
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 subclause (1) has not been complied with.

41
Q

The witness may give evidence by way of:

A
  1. Screens
  2. CCTV
  3. Video recording
42
Q

Failure to protect child: The offence applies to:

A
  1. Members of the same household as the victim
  2. People who are staff members of any hospital, institution or residence where the victim resides.
43
Q

Failure to protect child: Criminal liability will arise if such a person:

A
  1. Knows (means rea) the victim is at risk of death, GBH or sexual harm. and..
  2. Fails (actus reus) to take reasonable steps to protect the victim from that risk.
44
Q

Failure to protect child: What is required to be proved?

A
  1. Under the age of 18 at the time of the offence, and
  2. That the Defendant was over the age of 18, and,
  3. The Defendant, by virtue of being a member of the same household as the victim or a staff member in a hospital or institution or residence where the victim resides has “frequent contact: with them, and
  4. The Defendant has knowledge of the risk of harm to the child.
45
Q

Interacting with Victims of Sexual offences: CALM TEA

A
  • Conduct your dealing in a sensitive manner
  • Accept they are telling the truth
  • Listen to what they tell you
  • 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 counseling services available.
46
Q

Adult Sexual Assaults: 12 key process points

A
  1. Initial Actions on contact
  2. Case referral
  3. Providing specialist support
  4. Preliminary 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. Preventative opportunities and responsibilities
47
Q

Adult Sexual Assaults: Preserving trace evidence – Victims should refrain from?

A
  1. No eating or drinking
  2. No going to the toilet (if necessary, use a toxicology kit, and do not wipe)
  3. No washing or showering
  4. No washing of hands or biting fingernails
48
Q

Adult Sexual Assaults: Explain to Victim the medical forensic examination procedure

A
  1. Conducted by a medical forensic practitioner specially trained in examining victims of sexual assault
  2. The benefits of a full medical forensic examination including:
    * The potential benefit to their physical, sexual and mental health
    * How the examination can help Police obtain evidence to apprehend the offender
  3. The expected time for the examination and, if appropriate possible outcomes of the examination.
49
Q

List areas to consider when determining the “seriousness of physical abuse”

A
  1. The action of the abuse
  2. The injury inflicted, and
  3. The circumstances (Factors of the case)
50
Q

Compelling indecent act with animal

A

Section 142A
Person can be charged who compels another person with a force or threat, to conduct any act of indecency, does not have to be penetration.

51
Q

Indecency with animal

A

Section 144
Everyone is liable to imprisonment for a term not exceeding 3 years who commits any act of indecency with an animal.

52
Q

In the debrief with the medical practitioner, list 5 topics that need to be covered.

A
  • Forensic items for ESR.
  • Immediate needs of the Victim
  • Summary of exhibits and possible significance.
  • Injuries that need to be photographed.
  • Significant disclosures made by the Victim during exam.
53
Q

When contacting the medical forensic practitioner, what info should you give them?

A

Advise the age and gender of the victim as this may impact on the suitability of the practitioner
* Advise when the sexual assault was believed to have occurred
* Give a very brief outline of the information known so far, including whether drugs may be involved and details of the victim’s injuries, level of intoxication, or other known health concerns
* IF relevant, discuss the victim’s wishes about the gender of the examining practitioner
* When necessary, discuss whether a child’s sexual assault complaint should be investigated using the adult sexual assault procedures (or vice versa).

Tim Modules (10 decks)

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