Sexual Offences Flashcards
Types of sexual offences
uSexual behaviour which is performed without consent
uSexual behaviour (even if consented to) which takes place in circumstances that are inherently coercive.
uAttempt provisions
uGenerally, the offences are built around one of three types of sexual behaviours: sexual connection, penetration of genitalia with a penis, and non-consensual touching (or its threat) which has an element of indecency.
uIt is no part of the definition of any of the sexual offences that the perpetrator was sexually motivated in their behaviour.
Generally sexual offences can be grouped into three categories.
Sexual behaviour → performed but without consent → behaviour without consent → if consent it would be normal sexual behaviour between the two parties involved.
What brings it into the realm of criminal law → is because it is performed without one of the person’s consent
At the heart of these is bodily integrity → Protecting our bodily integrity.
With sexual offences → same premise → i get to choose who i am sexually intimate with and what boundaries of sexual behaviour i am comfortable with.
The law is trying to protect in situations where sexual behaviour is being formed without consent.
First group of offences —> sexual behaviour –
Common offences for sex behaviour → sexual violation → can be either rape (gender specific) , or unlawful sexual connection.
Within the first variety of sexual behaviour perfomed without consent → offence of sexual violation → broken down into rape and unlawful sexual connection.
The second group of offences that come in this category is indecent assault —> normal assault (196), so added element of indecency with normal assault.
The second type or category of offences → sexual behaviour on the face of it has been consent, but society says in these circumstances that they are inherently coercive → in this category there may have been consent, but done so in circumstnaces which soceity says is inherently coercive → so take away consent → for example sex with a child → children cant give consent → blackmailing to have sex with someone.
Potential family relationship —> offence of incest.
Potential consent → but circumstances around that where soceity takes away consent.
Third category → Attempt provisions → preparatory acts towards sexual behaviour that would be without consent → grooming for example (sexual grooming).
Concentration is mainly on the first category (sex behaviour without consent)
In all the different offences, will be built around either sexual connection → either the idea of penetration of genitalia with penis, or threat or actual application of force, non consensual touching with added element of indecency
Relevant to first category, and second category as well.
The reason for the behaviour does not have to be sexually motivated.
In New Zealand → do not have to prove that behaviour was motivated by sexual motivation.
For example schoolboys putting things inside other school boys anus → no sexual intention → but met elements of the provision → and also having the mens rea → It could be sexual violation.
Does not have to be sexual motivation to still hold someone liable aslong as met elements of actus reus and mens rea.
New Zealand Ministry of Justice,
1 November 2019
uRates of reporting to the police: 7-9 per cent
uOf the cases reported to the police, charges are laid in 31 per cent of cases
uconvictions result in only 11 per cent of cases and
u6 percent result in a prison sentence.
Rape and unlawful sexual connection.
First week → actus reus element
The law that we learn about sits within a context → important to know that it is difficult to secure prosecutions in this kind of offending → hard to report and hard to prosecute.
Crime victim survey → people called upon and asked whether they have had offences against them
There is this gap between what is reported and how much of this behaviour is going on → Dark figure/hidden figure of crime
When looking at police data → these cases are significantly unreported → only about 7-9% of sexual offending is being reported → so low reporting rate → compares to about 30% for other offences
Motor vehicle crime is a lot higher because need police number for insurance claim
Sexual offending is very low.
Of the cases that are reported only 31% are laid charges → and 11% are usually convicted, and 6% of those convictions will go to prison.
This is called an attrition rate → large hidden figure and amount actually reported.
Points of discussion:
uWhy might those who have experienced sexual victimisation be reluctant to report?
uWhy is it so difficult to prosecute offences involving sexual victimisation?
Why is reporting to the police so low? → private nature filled with sense of shame and confusion, issues around credibility becomes he said she said, a lot of sexual behaviour will happen within the context of some intoxication.
Circumstances could mean people don’t realise what happens or question their own recollection. → so if i cant remember how would i communicate that to the police.
Happens within private → so difficult to know what happened. → family and community influence → want to deal with it in the community, or distrust with the police in certain communities.
Level of victimisation is high → questioning and cross-examination → difficult process → off putting for some people.
Normalisation of dominance ad submissive idea of men and women, who can and can’t be sexual violated. → overwhelmingly in reality it is a gendered sense of offending → females are more likely to perpetrated by male offender → but can happen female to male or same sex.
Society’s views → so for men to come forward have to break through societal understanding of masculinity.
Most sexual offending will happen from someone we do know → partner, family memebr, extended family member. → sometimes the person victimised may not want to go to police as dont want person who is doing the abuse to be prosectud.
Alot of people drop out after claiming due to re victimisation.
Why are such cases difficult to prosecute?
uPrivate nature of activity: credibility contests: he said vs she said (although the accused can exercise the right to silence and put the crown to the proof)
uBurden of proof on Crown to a high standard
uCredibility issues for complainants in court
uThe need to draw black and white lines in a complex world: consent
Accused has fundamental right to silence → defence wont usually put them on stand until they see what the complainant does.
Burden of proof remains on crown and to normal criminal standard → beyond reasonable doubt → so if any doubt than person should be acquitted → high level to secure conviction —> right to fair trial → serous offence
Sexual violation → up to 20 years in prison.
Credibility issues
Sexual offending becomes complex because peoples understanding of consent can differ, cultural understandings of consent.
Alcohol, drugs, may be in a relationship → what we are trying to do is draw firm lines behind behaviour → but it is a really complex gray world really.
Set the parameters of sexual behaviour, and i do what i want to do with my body → bodily integrity → which is why criminal law gets involved. →
Why are such cases difficult to prosecute? Quilter – the old legal requirements:
uthe location of the event
ua focus on resistance (absence or presence of injuries)
urecent complaint
uthe underlying assumption of the untrustworthiness of the complainant
u
u
J Quilter, ‘Re-framing the rape trail: insights from critical theory about the limitations of legislative reform’ (2011) 35 Australian Feminist Law Journal 23-56
Julia Quilter → reframing rape trial
Looked at number of rape decisions → made a lot of changes → overhauled in 2005, Julia points that we have changed the law/legal framework surrounding rape and sexual offences to safeguard complainants.
But despite reforms is you dont change underlying practice → juries, defence counsel, and their understandings or the way they work we will not get reform.
Schema → way of trying to make sense of something.
Defence and prosection → old fashioned schema according to Julia.
Used to be importance on location of the event → if they were isolated and nobody could help them → the old law also focussed on resistance → had to shout no or protest through actions → or that it was a recent complaint → if real rape then people would run to police straight away → the idea of recent complaint in old law as well →
JUlia → old requirements had to do evidence into previous sexual history and untrustworthiness due to this.
Despite any reform → the defence or prosecution buy in to these old ways of sex violence and rape.
Quilter:
uThe location was (not) remote
uThere was (no) physical injury
uShe did (not) recently complain of rape
uShe was (not) of good fame
u
= She is (un)believable; she had sex/she was raped
These old requirements were still relevant as juries still think this way.
Interesting because we have made progress in how we deal with sexual offences.
Factors significantly correlated with a conviction:
•Prior relationship between defendant and complainant (convictions less likely)
•If the complainant used alcohol or other drugs (convictions less likely)
•The complainant’s age (convictions more likely if complainant was older)
•The presence of DNA evidence (convictions more likely)
•The absence of a statement by the defendant to the police (convictions less likely)
•Tangible evidence (convictions more likely)
•Non-associative forensic evidence, eg photos (convictions more likely)
Studies show that these things will correlate with getting a successful conviction.
If they have relationship → less likely
- Offences based on lack of consent – sexual violation:
S 128(1): Sexual violation is
(a) The act of a person who rapes another person; or
(b) has unlawful sexual connection with another person
Rape: section 128(2):
Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis –
(a) Without person B’s consent and
(b) Without believing on reasonable grounds that person B consents to the connection.
uActus reus =
uPenetration of genitalia by a penis
uOne of the parties involved does not in fact consent
uMens rea =
uThe accused does not believe that the other party consents
uOr if they do believe in consent there are no reasonable grounds for this belief
Actus reus two elements → penetration of genatalia by a penis, and one of those parties does not infact consent.
What is the conduct element → Penetration with penis of someone else’s genitals.
And the other element is the question of consent → did the other person in fact consent?
Different from how we have learned about consent.
Actus reus involves the doing (penis penetration), and one of the parties does not consent → so consent goes to the heart of the actus reus as well.
The mens rea —> is either the accused does not believe that the other party consents → so they know that the other party is not consenting.
Or if they do in fact believe that the other person is consenting there is no reasonable grounds for that belief.
Mens rea is either that the accused either doesn’t believe → or if they say they do believe that there is no reasonable grounds for that belief.
Consent is relevant to mens rea and actus reus → So a jury has to think about consent of the victim both in relation to the conduct actus reus, and also relevant to the mens rea in relation to the defendants state of mind.
Did the defendant believe they had the consent of the other person → even if they did believe they had consent, can we say there was no reasonable grounds for that belief
Objective element into the mens rea for rape.
Usually mens rea was judged subjectively → in 1985 we introduced that it was partially subjective, but also brought in moderator of reasonable grounds → cant just say they thought the other consented → are there reasonable grounds for them believing this?
Unlawful sexual connection: s 128(3):
Person A has unlawful sexual connection with person B if person A has sexual connection with person B
(a) without Person B’s consent to the connection; and
(b) without believing on reasonable grounds that person B consents to the connection.
Sexual violation in 128 can also be affected by unlawful sexual connection in (3).’
Our conduct is sexual connection → and the mens rea mirrors rape, the mens rea is about what was the belief of the accused in that persons consent.
Actus reus is sexual connection not gendered much more broad → and also the issue of victim consent, did the person consent or not?
The actus reus for unlawful sexual connection → has sexual connection → and did the party consent?
Mens rea → did they know or beleive that other person consenting, and are there reasonable grounds to that belief if they did.
Sexual violation → is the offence in s128 → and sexual violation can either be rape or unlawful sexual connection.
Rape → has specific definition → conduct → penetration of genetalia by penis
Unlawful sexual connection has definition around sexual connection → different.
But actus reus and mens rea relatively similar.
The only difference in terms of rape and sexual connection is the conduct -> is how we affect the sexual connection when it comes to rape → penetration of genatlia with penis (Rape).
uActus reus =
uSexual connection (as most broadly defined)
uOne of the parties does not consent
uMens rea =
uAccused knows that the other party does not consent
uOr if the accused thinks they do consent he or she does not have reasonable grounds for that belief
uNote, that in contrast to assault, consent under sexual violation is not a defence.
uNon-consent must be established as an actus reus element.
uConsent also part of mens rea
For sexual offences → consent works as part of the actus reus and the mens rea.
So it sits at level of the offence → Its in the space of the offence → so that is when pros, def, and jur will be thinking about it.
Sexual violation – Actus reus:
uS 128 (2) rape
uPenetration of genitalia by a penis
uOne of the parties involved does not in fact consent
ØS 128(3) unlawful sexual connection
uSexual connection (as most broadly defined)
uOne of the parties does not consent
Rape specific → penetration of genetalia by penis, no consent.
Sexual connection → defines it much more broadly then for rape → and defines in a way that is not gendered → can apply to both genders.
Sexual connection means (s 2):
(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; or
(ii) an object held or manipulated by another person; or
(b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)
uR v Everson CA 194/95, 9 Nov 1995;
uR v Ennever DC Auckland, 1 August 2002
What does sexual connection mean —> broader meaning comes from definition part of crimes act which is s2.
Connection can be affected by introduction into the genitals or anus of one person.
Otherwise for medical purposes.
In paragraph a → connection is affected by the introduction to genetalia or anus of a person, a part of a body → can be a finger or a penis. Or an object being held or manipulated by somebody → introduced into genatalia or anus of another person.
Don’t prosecute male rape under s128 (2) → because talks about in specific gendered way → usually prosecuted under (3) → because part of body could be penis and introduced into anus.
So it is gendered, and not gender specific.
The other part of section 2 → under para (b) → is connection of mouth or the tongue of one person and another person’s genitals or anus. → oral sex things like.
Para © → continuation of a and b.
Idea of introduction → Offence of rape → talks about penetration of genetalia
Sexual connection talks about → introduction into.
Continuation of that connection → case of Everson.
Everson → Complainant asked sexual partner to get off her twice, in course, asked to stop two times, he carried on → under old law, needed penetration, and the moment penetration then the offence was committed so anything after that did not matter → but current law, at any point you have right to withdraw consent.
The moment you communicate it wanting to stop then it has to stop —> that is what Everson stands for → the Court found the offence of rape → Told him to stop twice.
Paragraph c → continuation idea → Everson → can be in process and can still withdraw consent.
Ennever → District Court case → does not have precedence of higher courts .
Ennever → idea of what it means to affect a communication affected by introduction.
Ennever → a man was running his penis over a woman’s face, running a woman over her face in order for it to be unlawful sexual connection have to say where is the conduct → using a part of his body, and connection with the mouth of the other person.
Did he introduce, had he done enough to introduce the penis into the mouth for example → the Court took a medical definition of what our mouth is → the Court used a medical definition and said the mouth is the cavity that sits behind the lips.
So he hadn’t introduced his penis into the cavity, all he did was brush it up against his lips —> court said it wasnt enough to affect an introduction → wasn’t enough —> so held it to be indecent assault → lesser offence → than sexual violation.
District Court case.
Not binding but don’t have recent relevant authority on that point → but Courts use medical definitions in trying to understand parts of our body involved in sexual connection.
Section 2:
uGenitalia 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).”
uPenis includes “a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female, or of indeterminate sex)”
u
R v Karotu (1994) 11 CRNZ 691
Defines genetalia, or penis.
Defines one person is born with, and also includes surgically constructed organs which would be analogous to genetalia or penis. → whether person is male female or indeterminate sex.
In 1994 we changed it to genetalia instead of vagina → the vagina medically is the birth canal → or the penis may penetrate → but other parts such as labia, lips, and the vulva that are all part of what we would think of as the vagina in a non medical sense.
If penis penetrating vagina, then penis would have to penetrate to a certain level —> If genitalia, if there is an introduction, opening of the lips of that area would be enough to say that there is the conduct of penetration or introduction.
The Queen v Annas [2008] NZCA 534:
Consent changes the existing rights and obligations to make what would otherwise be impermissible, permissible, turning what would otherwise be a criminal act into a non-criminal one. To ensure the autonomy of the individual it must be voluntary and deliberate. In order to be voluntary and deliberate it must not be coerced, that is, the decision to consent must be a function of the person’s will, and not the will of some other person.”
The Queen v Annas → what is consent? → consent is vital to our actus reus and mens rea part of both rape and unlawful sexual connection.
Did they infact consent.
Annas → consent is at the heart of this offence → what makes this criminal is consent → it is because of one of these parties is not consenting which makes this criminal.
Consent changes what would otherwise be a criminal act to a non-criminal act.
To ensure autonomy of individual has to be volunatary and deliberate.
Consent must not be coerced → has to be function of that persons will and not of the other person.
We do not define what consent is in terms of sexual offences → so have to look at case law to see how judges are interpreting it.
First category → turns on that point of consent → becomes criminal because absence of consent.
Change in 1994 → Karoutu → change from vagina to genitalia.
Amendment act in 1994 —> changed it → to open up behaviour for unlawful sexual conneciton and rape.
Consent in fact: actus reus
uR v M [1993] DCR 1144: “The essence of true consent is that it is freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which [they] consent.”
There isn’t a need for showing positive consent on behalf of victim
R v M → consent is freely given → not under threat or any force, freely given by rational and sober person, →
sober person → even if someone intoxicated they can still consent. → if the person is intoxicated most people know to not → but in terms of the law → the law will at times allow consent to be allowed even if they are intoxicated.
Difficult factual distinction:
uA mere submission without consent – because it is inevitable or the person is trapped, exhausted, powerless or despairing
uConsent given reluctantly
u
uR v Brewer [1994] 2 NZLR 229
uW v R [2013] NZCA 316
Difficult question of have they actually consented? Reluctantly?
You can have consent that can be given reluctantly which can still be a form of consent.
Or that they are submitting because overwhelmed by will of other —> in those cases we say they are not consenting.
Trying to imagine scenarios where consent is not given but person has just submitted, reluctance.
This becomes one of the reasons why it is so difficult to prosecute these cases.
There is no legal statutory definition of consent → Mostly a jury decision
At actus reus question of fact for the jury.
Cases where someone reluctantly gives consent —> is still consent. → or submitted to something → not consent.
Case of Brewer → involved a young person, nearly 17, 16 years old, did not live at home, living with boyfriend who she was financially dependent on, went for job interview, person interviewing her was in his 20s, and in the course of job interview she thought the room was locked and thought it was an area which she thought others couldnt hear her.
The man repeatedly asked her what would she do to get the job. → so he first of all asked her whether she would take her top off to help her make a decision whether or not he might give her the job. She initially says no, and then she takes her top off, and he fondles her breast.
Then he says if you give me oral sex i will definitely give you the job → again she refuses to begin with and finally performs oral sex in order to get the job.
She said she protested but she realised the door was locked → and if she screamed nobody would come, said she reluctantly consented.
The issue for the jury was whether she was coerced in anyway, was it a submission? → in which case her will had been overborne by him and she didn’t consent → or was it that she had consented but it was a reluctant consent.
At trial he was convicted of the sexual violation → he appeals, and the CA dismissed his appeal.
CA says → when looking at consent what is important is the context → in this case her age, she was only 16, the power differential, extract by threats or inducements, give you the job if you do oral sex. IF she had been older an adult, they would likely to have said she had consented but was just reluctant.
The fact she was 16 played a large role and said she submitted a submission is not consent —> so said she didnt consent.
W v R —> Couple who had separated, the complainant had taken photos of ex partners when they were together, he bombarded her with photos, and text messages saying if they didnt get back together, she would show work colleagues, and family and show them all the photos of her.
She went to the police, and they said nothing they could do? She said she felt she had no choice → had she just given consent but was reluctant, or had she submitted and not given consent? Because overborne by will of another.
In that case again he was convicted of sexual violation, he appealed, the CA dismissed his appeal they said it was a submission without her consent.
Context is important in these cases.
Matters that do not constitute consent: s 128A:
not exhaustive – can find non-consent on the facts even if don’t fit one of the categories in s 128A
Sexual violation is → both rape in 128 (2), and 128 (3) unlawful sexual conneciton
And consent goes to the actus reus as well.
s128A → certain things, certain matters and contexts where people can’t consent
Non exhaustive → you could find that someone has consented in things not defined in 128A.
Start looking at categories of 128A
Matters that do not constitute consent: s 128A:
(1) he or she does not protest or offer physical resistance to the activity.
uIn Christian v R [2017] NZSC 145 the Supreme Court held that consent cannot be inferred from a simple failure to protest or resist by the complainant. However, s 128A does not mean “that there can be no consent in the absence of evidence of positive consent.” The provision simply means that:
u“There must be something more in the words used, conduct or circumstances (or a combination of these) for it to be legitimate to infer consent.”
128A (1) —> complainant does not have to offer physical resistance to the activity or protest → dont have to say no no no, or calling out, or fighting back.
What we know from studies is that a normal reaction is for people to freeze or not be able to do anything that the old common law wants.
Don’t have to fight back and say no.
Case of Christian → SC level → Consent cannot be inferred by simple failure to protest or resist by the complainant. —> cannot infer that person was consenting just because someone doesn’t fight back or say no get off.
No requirement on victim to positively show consent —> SC cannot infer that person has consented just becuase they don’t fight.
But what they do say is what are the circumstances of what is going on to see whether they can infer consent →
Can infer consent from relationship expectations → SC → fact pattern.
When im in a relo i get to choose when i want to be sexually intimate, that doesnt mean person have full scale of sexual relation, have right to choose.
Some people have difficulty in relation to relationship expectations.
Christian → 13 year old complainant, she lived with her mum, and church pastor came to live with mother, then had sexual intercourse with her for a number of years starting when she was 13.
When it became known, and he was charged with sexual violation —> he refused to acknowledge that sex took place → in any event the jury didnt believe him
But he appeals and it goes to the SC → and it goes up on the point that he was denying that sexual violation did not happen, or sexual intercourse never happened.
Had argued that trial judge hadnt properly put issue of mens rea to the jury.
When it comes to the SC —> they allow his appeal, uphold conviction, the first time they had sexual intercourse, it was rape, and all the other times → for all the other times they upheld his appeal, and they said it was because there might be circumstances that overtime allow you to infer consent from what is going on —> and they said relationship expectations.
In the context of a much older man and a 13 year old —> interesting to find relationship expectations.
Will revisit this case in mens rea
Focusing on actus reus —> and issue of matters which will not constitute consent.
Person does not have to protest or offer any kind of physical resistance.
