Sexual offences Flashcards
128(1)(a)
Sexual violation by rape
A person
Rapes
Another Person
128 (1)(b)
Sexual Violation by Unlawful Sexual Connection
A person
Has an unlawful sexual connection
With another person
129(2)
Assault with intent to commit sexual violation
A person
Assaults
Another Person
With intent to commit sexual violation with the person
130
Incest
A person (over 16 years old)
Has a sexual connection with a person whose relationship is that of parent, child, sibling, half sibling, grand parent or grandchild
And
Knows of the relationship
131A
Sexual conduct with a dependent family member
A person
(1) has a sexual connection with a dependent family member U18
(2) Attempts to have a sexual connection with a dependent family member U18
(3) Does an indecent act on a dependent family member U18
131B
Meeting young person following sexual grooming
A person
Having met or communicated with a person U16 on an earlier occasion
(i) intentionally meets the young person
(ii) travels with the intention of meeting the young person
(iii) arranges for or persuades the young person to travel with the intention of meeting him or her
And
Intends to sexually exploit or have a sexual connection with the young person
132
Sexual Conduct with a child
A person
(i) has a sexual connection with a child under 12
(ii) attempts to have a sexual connection with a child under 12
(iii) does an indecent act on a child under 12
134
Sexual Conduct with a young person under 16
A person
(i) has a sexual connection with a young person under 16
(ii) attempts to have a sexual connection with a young person under 16
(iii) does an indecent act on a young person under 16
135
Indecent assault
A person
Indecently Assaults
Another Person
138
Sexual exploitation of a person with significant impairment
A person
Has a exploitative sexual connection
With a significantly impaired person
128B
Sentencing for sexual violation. Should be specified when charging
Maximum imprisonment of 20 years and imprisonment should be imposed on sentencing unless special circumstances
Evidence Act 2006 S44
No evidence or questions can be put to the complainant about their sexual experience with any person other than the defendant (except with the judge’s permission)
Evidence Act 2006 S87
Privacy to witness precise address
No questions about address, town or community that they live in (except where the judge determines that they are directly relevant to the facts)
Evidence Act 2006 S88
Protects complainants from questions put to them or a witness about complaints occupation, or statement/remarks about complaints occupation
(An application can be made to the judge to disclose this information)
Evidence Act 2006 S121
Complaints evidence does not have to be corroborated.
Evidence Act 2006 S35
Previous Consistent statements
Inadmissible
Unless to respond to a challenge to the witnesses veracity or accuracy
Evidence Act 2006 S103
Grounds for evidence to be given in an alternative way
- age or maturity of witness
- physical, intellectual, psychological or psychiatric impairment of witness
- trauma suffered by witness
- fear or intimidation
-linguistic or cultural background or religious beliefs
- nature of proceedings
- nature of evidence
- relationship of the witness to any party in the proceedings
- absence or likely absence of the witness from NZ
104 - chambers hearing before direction for alternative evidence
Application not guaranteed,
Each party gets a say
Evidence Act 2006 S105
Alternative ways to give evidence
In the courtroom but unable to see the defendant (screens)
From an appropriate place outside court room (video link)
By a video record before the hearing
Evidence Act 2006 S107
Child witnesses are entitled to give evidence in an alternative way
Regulation 28, Evidence Regulation 2007
Police must ensure a typed video transcript of a video record to be used in proceedings is given to the defendant or defendants lawyer as soon as practicable after the defendant has pleaded not guilty
Exploitative sexual connection
Has a sexual connection knowing that the person is significantly impaired
Significant Impairment
Intellectual, mental or physical condition that impairs the person’s capacity to
- understand the nature of sexual conduct
- understand the nature of decisions about sexual conduct
- foresee the consequences of decisions about sexual conduct
- communicate decisions about sexual conduct
Sexual Violation
Crown must prove
- Intentional act by offender involving sexual connection with the complainant
- the complainant did not consent to the sexual act
- the offender did not believe the complainant was consenting
- if they did believe the complainant was consenting the grounds for such a belief were not reasonable
Section 128(2)
Person A rapes Person B, if person A has a sexual connection with person B effected by penetration of Person B’s Genitalia by Person A’s penis
(a) without person B’s consent
(b) without believing on reasonable grounds that person B was consenting
128(3)
Person A has an unlawful sexual connection with Person B, if person A has a sexual connection with person B
(a) without person B’s consent
(b) without believing on reasonable grounds that person B was consenting
128(4)
You can be convicted of sexual violation while married
Proving penetration
Complainants statement
Medical examination including DNA and physical injury
Defendants admissions
Penetration
The extent of penetration is not relevant, penetration to the slightest degree no matter how slight or fleeting is sufficient
Genitalia
The male and female reproductive organs. Penis and testicles of a male and the vulva and vagina of females
This includes surgically constructed organs analogous to naturally occurring male or female genitalia
Genitalia CL
R v Koroheke
The genitalia compromise of the reproduction organs interior and exterior… the include the labia and vulva interior and exterior at the opening of the vagina
Sexual connection
Connection effected by the introduction into the genitalia or anus of one person otherwise than for genuine medical purposes,
A part of the body of another person
An object held or manipulated by another person
Or
a connection between the mouth or tongue of one person and a part of another persons genitalia or anus
No presumption because of age
It would not be a defence to a sex related charge to say either of the parties was too young or old
Consent CL
R v COX
Consent must be full, voluntary, free and informed……. Freely and voluntarily given by a person in a position to make a rational judgement
Objective test CL
R v Gutuama
Under the objective test the crown must prove that no reasonable person in the accused shoes would believe the complainant was consenting
Consent Timing
The belief in consent is to be considered at the time the actual act took place
128A
Invalid Consent- applies to sexual connection and indecent assault
- not protest or offer resistance
- force, threat of force, fear of the application of force to themselves or another
-asleep or unconscious
-affected by alcohol or drugs to the degree can give consent - affected by an intellectual disability
- mistaken identity
-mistaken to nature and quality of act
Attempts
S72 Crimes Act
Everyone who having an intent to commit an offence, does or omits an act for accomplishing his object, is guilty of an attempt to commit the offence
Attempt CL
R v Harpur
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
R v Harpur
The defendants conduct may be considered in its entirety (cumulative conduct)
Assault
The act of intentionally applying or attempting to apply force
Directly or indirectly
Or threatening by act or gesture to apply force
Intent
Deliberate act
Specific result
132 (4) and (5)
Not a defence
(4) believes over 12
(5) child consented
Consent CL Child
Cox v R
Save in exceptional and rare circumstances… even when she indicates an agreement to the act occurring…. No reasonable adult would have grounds for believing that a 10 or 11 year old girl has the experience or maturity to understand the nature and significance of the act.”
Age CL
R v Forrest and Forrest
The best evidence possible in circumstances should be adduced by the prosecution in proof of the victims age
Indecent Act
An act accompanied by circumstances of indecency
Section 134A
Defence against charge if
-defendant believes on reasonable grounds 16 or over
- has taken reasonable steps to ascertain over 16
- young person consents
Indecent Assault CL
R v Leeson
Definition of indecent assault is an assault accompanied with circumstances of indecency
Indecency CL
R v Court
Indecency means conduct that right thinking people will consider an affront to the sexual modesty of the complainant
Indecent Assault defence
R v Norris
If a person honestly believed the defendant consenting even if the grounds were unreasonable they are entitled to be acquitted
S144
Sexual conduct with children and young people outside NZ
New Zealand Citizens or residents
Commit an offence
If do anything listed under 132 o134 or use a prostitution under18
144B
To file a charge under 144A you must have consent from attorney general
A person alleged to have committed an offence may be arrested or WTA may be issued and may be RIC or bailed out
Medical forensic examination
The examination will be conducted by a specialist medical forensic practitioner
Benefits of full medical forensic examination
Expected time frame for examination
Preserving trace evidence
No eating or drinking
No going to the toilet
No washing or showering
No washing of hands or biting of finger nails
Provide safe and secure environment
C- conduct dealings with a sensitive and concerned manner
A - accept they are telling the truth unless evidence to the contrary
L- listen to what they tell you and give them the opportunity to tell their account
M- establish whether they need medical attention
T- treat the courteously
E- explain the process
A- advise of local counselling
Seriousness of Physical Abuse
The action of the abuse
The injury inflicted
The circumstances
Victims Rights - police obligations
Victim contact must be recorded
Victims must be given information about the progress of the investigation within 21 days
Victims must be kept updated and informed of the outcome of the investigation
Right to go on VNR after offender arrested and charged if it is a S 29 offence
Property belonging to victim returned promptly
Child abuse definition
The harming (whether physically, emotionally or sexually), ill treatment, abuse, neglect or deprivation of any child or young person
ASA Timeframes
Acute - within 7 days
Non-acute - 7 days or more to 6 months
Historic- over 6 months
ASA 12 Key process points
- Initial Action
- Case referral
- Providing specialist support
- Preliminary Interview
- Information Feedback
- Medical examination
- Formal interview
- Investigation and evidence
- Resolution Process
- Prosecution
- Final actions and record keeping
- Preventative opportunities
Child centred time frames
Time frames that are relevant to the child’s age and cognitive development
Incest key factors
Must be over age of 16
The relationship
Knowledge of the relationship
