Sexual Offences Flashcards
Elements and section - Sexual violation by rape
Section 128(1)(a) Crimes Act 1961
- A person
- Rapes
- Another person
Elements and section - Sexual violation by unlawful sexual connection
Section 128(1)(b) Crimes act 1961
-a person
-has unlawful sexual connection
-with another person
Elements and section - Assault with intent to commit sexual violation
Section 129(2) Crimes 1961
-a person
-assaults
-another person
-with intent to commit sexual violation of the other person
Elements and section - Sexual conduct with a child under 12
Section 132 Crimes Act 1961
-a person
(1) has sexual connection with a child
(2) attempts to have sexual connection with a child
(3) does an indecent act on a child
Elements and section - Sexual conduct with a young person under 16
Section 134 Crimes Act 1961
-a person
(1) has sexual connection with a YP
(2) attempts to have sexual connection with a YP
(3) does an indecent act on a YP
Elements and section - Indecent assault
Section 135 Crimes Act 1961
-a person
-indecently assaults
-another person
What must be proved in all cases of sexual violation
-intent by offender involving sexual connection with the complainant
-the complainant did not consent to sexual act
-the offender did not believe the complainant was consenting OR if they believed complainant was
consent, the grounds for such belief were not reasonable
Define sexual connection
-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,
-connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; OR,
-the continuation of connection of a kind described above
Define penetration
introduction to the slightest degree no matter how slight or fleeting
Proof of penetration may be established by..
-the complainant’s evidence
-medical examination, including physical injuries and
DNA evidence
-the defendant’s admissions
Genitalia case law
R v Koroheke
The genitalia comprise the reproductive organs, interior and exterior, the include the vulva and the labia, both interior and exterior, at the opening of the vagina
Explain “no presumption because of age” under Section 127
any person of any age is capable, in a legal sense, of being involved in sexual connection.
THEREFORE not a defence to a sex-related charge to say either parties was too young or too old
What must the Crown prove for an unlawful sexual connection
-the complainant did not consent to the sexual act, AND
-the offender did not believe the complainant was consenting, OR
- if they believed complainant was consenting, the grounds for such belief were not reasonable
Define consent and name related case law
consent is a person’s conscious and voluntary agreement to something desired or proposed by another
R v Cox
R v Gutuama
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
Notes on reluctant consent
true consent may be given reluctantly or hesitantly and may be regretted afterwards but if given without fear or application of force or the result of actual or threatened force, then it is true consent
R v Gutuama
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
Notes on recklessness as to consent
not consistent with having reasonable belief in consent
What are the six elements to prove in a withdrawn consent case
1 - Person A sexually penetrated person B
2 - Person B did not consent to penetration
3 - Person A knew that Person B was not consenting to penetration
4 - Person A continued with penetration knowing Person B was no longer consenting
5 - Person A did not believe on reasonable grounds that Person B was consenting to the penetration
6 - Person A continued penetration when a reasonable person would not believe Person B was still consenting
Specified non-consent under Section 128A
- lack of physical resistance
- consent under fear, threat or application of force
- asleep or unconscious
- intoxicated to degree unable refuse to consent
- intellectual, mental or physical condition or
impairment to degree unable refuse to consent - mistaken identity of accused
- mistaken about nature and quality
Attempts case law
R v Harpur
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
Define assault
intentionally applying or attempting to apply force to another person, directly or indirectly, or threatening by any act or gesture to apply such force to the person or another, causing the other to believe on reasonable grounds that they have the ability to effect the purpose
Age (CYP) case law
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age
Notes on consent around indecent act on child
it is immaterial whether;
-the offender does the act on the child
-the child does the act on the offender
-the act is mutual
*when act is non-consensual or child’s consent not legally valid, it is an indecent assault
Indecency case law
R v Court
Conduct that right-thinking people will consider an affront to the sexual modesty of the complainant
What is the objective test for indecency
Judging in the light of time, place and circumstances
R v Dunn
Defence to charge under Section 134
-reasonable steps taken to find out whether YP was
over the age of 16 years; and
-believed on reasonable grounds that the YP was over the age of 16 years; and
-the YP consented
Indecent assault case law
an assault accompanied with circumstances of indecency
R v Leeson
Three points prosecution must prove for indecent assaults
-the defendant intentionally assaulted the complainant
-the circumstances accompanying the assault were indecent
-the defendant intended the conduct that a reasonable person would find indecent
Difference in belief in consent between sexual violation and indecent assault
with sexual violation, an honest belief in consent requires reasonable grounds for that belief. Indecent assault only requires honest belief alone even if not reasonable
List the sections for the following sexual crimes
1 - Sexual conduct with consent induced by certain threats
2 - Incest
3 - Sexual conduct with a dependent family member
4 - Meeting YP following sexual grooming
Crimes Act 1961
1 - Section 129A
2 - Section 130
3 - Section 131
4 - Section 131B
List the sections for the following sexual crimes
1 - Sexual exploitation of person with significant impairment
2 - Sexual conduct with children and young people outside New Zealand
3 - Organising or promoting sex tours
Crimes Act 1961
1 - Section 138
2 - Section 144A
3 - Section 144C
Who can be charged with incest
2 people whose relationship is that of;
- parent and child (incl. adoptive relationship
- siblings
- half-siblings
- grandparent and grand child
everyone of the age of 16 and knows of their relationship
Stepfather and stepdaughter NOT included
Notes on consent in sexual conduct with dependent family member
Covers all forms of sexual activity whether consensual or not.
Likely to be used only in cases involving complainants over usual age of consent (ie 16 17) where consent issues could arise on charges of sexual violation or indecent assault and incest not an option
Who is a dependent family member
if person has power or authority over him or her and is a -
parent, step parent, foster parent, guardian, uncle, aunt or is a child of his or her parent or step parent
Define unlawful sexual connection
Person A has unlawful sexual connection with person B if person a has sexual connection with person B
i) without person B’s consent to the connection
ii) without believing on reasonable grounds that person B was consenting to the connection
What are the alternative ways a witness can give evidence in court
- while in the courtroom but unable to see the defendant or some other specified person (Screens)
- from an appropriate place outside the courtroom, either in New Zealand or elsewhere (CCTV)
- by a video record made before the hearing of the proceeding (DVD)
What should be explained to a victim prior to a medical examination
- that the examination will be conducted by a medical forensic practitioner specially trained in examining victims of sexual assault
- the benefits of a full medical forensic examination including:
*potential benefit to their physical, sexual and mental health - how the examination can help Police obtain evidence to apprehend
the offender
-the expected time frame for the examination and, if appropriate, possible outcomes of the examination
When is sexual grooming complete
- when the offender intentionally meets the young person
- when the offender travels with intention of meeting the young person
- when the offender arranges for or persuades the young person to travel with the intention of meeting him or her
What should the victim be reminded of before a medical exam
- no eating or drinking
- no going to the toilet (if necessary, use a toxicology kit to capture urine and
ask the female victim not to wipe) - no washing or showering
- no washing of hands or biting fingernails
When is the offence of having exploitative sexual connection with a person with a significant impairment complete
- has sexual connection with the impaired person knowing that the impaired person is a person with a significant impairment; AND
- has obtained the impaired persons acquiescence in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment.
Notes on of complainant’s character
S44 Evidence Act 2006
Cannot disclose or questions complainant on sexual experience except to establish the fact the complainant had sexual experience with the defendant, OR act or omission is an element of the offence in question.
-Permission required by Judge
Notes on disclosure of complainant particulars
S87 & 88 Evidence Act 2006
May not be questioned or stated unless directly related to fact in issue
-Permission required by Judge
-In cases where a victim is a witness, s 5(1) of the Evidence Act means s 16 of the Victims’ Rights Act takes priority.
Notes on corroboration
S121 Evidence Act 2006
In any criminal proceedings, the complainant’s evidence is not required to be corroborated
Corroboration case law
R v Felisse
Although corroborating evidence undoubtedly strengthens the case for the prosecution, its absence does not make a conviction impossible. It can also help to establish certain key points.
List the acceptable corroborations
- defendant’s silence
- victim’s distressed condition
- victim’s ability to describe scene
- defendant’s statement
- defendant’s lie
Victim’s distressed condition case law
R v Moana
The time element between the alleged attack and the observation (of the complainant) by the
witness is all-important.
Notes on complainant’s evidence
S90 Criminal Procedures Act 2011
Either party may apply to the court for an order allowing the oral examination of a potential witness whether or not that witness has provided a formal statement.
The Judge must consider the particular vulnerability and impact it may have on the complainant
Persons allowed in court for oral evidence taken from complainant in cases of sexual nature
- any person requested by complainant
- any person expressly permitted by the Judge
Person requested by complainant in court case law
R v Tawhara
There is no necessary limit to the number of people the complainant or defendant may request to remain in the courtroom
Previous consistent statements rule
Generally not admissible unless
- responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness; OR
- forms an integral part of the events before the court; OR
- consists of the mere fact that a complaint has been made in a criminal case.
Define person
A person accepted by judicial notice or proved by circumstantial evidence
How often must child abuse be informed of their investigation progress?
Within 21 days
What are the 3 timeframes used by OT for CPP, and explain them
Critical (24hrs)
No safety or care identified, at serious risk of harm
Very urgent (48hrs)
At risk of seriois harm but has some protective features for thr next 48hrs
Urgent (7days)
At risk of harm or neglect and circumstances are likely to negatively impact CYP
What is historic child abuse
Reports made by an adult (over 18 at time of reporting) thay occurred against them when they were a child
What is an IJIP and what factors must it consider
Initial Join Investigation Plan
-immediate safety of child
-referral to medical practitioner
-if a joint visit is required (police and OT)
-collection of any physical evidence
-any further considerationd agreed on
Charges for child abuse offences must always reflect …
-seriousness of the offence
-essential nature of the offending
-admissible evidence
Define rape
Person A rapes Person B if there is a sexual connection effected by the penetration of Person B’s genitalia by Person A’s penis,
-without Person B’s consent to the connection
-without believing on reasonable grounds Person B consented
