Sexual Offences Flashcards
SEXUAL VIOLATION
What must be proved?
** beyond reasonable doubt that:**
• 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 he did believe she was consenting, the grounds for such a belief were not reasonable
Sexual violation
Write out the full section 128
Identify the part that are used in the two liabilities
Section 128, Crimes Act 1961
Sexual violation defined
(1) Sexual violation is the act of a person who—
(a) rapes another person; or
(b) has unlawful sexual connection with another person.
(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 to the connection; and
(b) without believing on reasonable grounds that person B consents to the connection.
(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
What do the following sections lay out in CA61?
Section 128(1)
Section 128(2)
Section 128(3)
Section 128(1) Sexual violation = rape OR U/L sexual
connection
Section 128(2) Rape = sexual connection - consent
Section 128(3) U/L sexual connection = sexual connection - consent
Sexual Violation
What are the penalties for:
Rape
Unlawful Sexual connection
Rape : 20 Years
Unlawful Sexual connection: 20 Years
Sexual Connection
Define sexual connection as is required in liabilities
Section 2, Crimes Act 1961
Interpretation
Sexual connection means—
(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).
Sexual connection
Define: Introduction into / penetration
(use Section 2)
Section 2, Crimes Act 1961
Interpretation
Introduction to the slightest degree is enough to effect a connection.
Proving penetration
Complete the below
‘Proof of penetration may be established by:’
Proof of penetration may be established by:
• The complainant’s evidence
• Medical examination, including physical injuries and DNA evidence
• The defendant’s admissions
Genitalia
Define as per Section 2
Section 2, Crimes Act 1961
Interpretation
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)
Genitalia
What is the case law relating to genitalia which complements Section 2?
_R v Koroheke _
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.
Penis
Define as per Section 2
Section 2, Crimes Act 1961
Interpretation
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)
Anus
Is ass-rape actual rape?
Whats the appropriate charge?
The anus is not included within the definition of genitalia, and therefore non-consensual penile penetration of the anus is not rape.
The appropriate charge would be one of sexual violation by unlawful sexual connection under section 128(1)(b).
Objects held / manipulated
Whats the key point differentiating an object from a penis?
Anything other than part of the body
No presumption because of age
What can the Crown not assume due to age?
Refer Section 127
Section 127 Crimes Act 1961
No presumption because of age
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
What makes sexual connection unlawful?
What are the three tests to test if a
sexual connection is unlawful?
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)
Consent
Define Consent
Refer to Case Law
“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.
_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.”
Reasonable grounds (for consent)
What is Subjective test 1
What is Subjective test 2
What is Objective test 3
(Refer to case law for 3)
Subjective test 1
What was the complainant thinking at the time?
Subjective test 2
Whether or not the defendant believed she was consenting at the time.
Objective test 3
What would a reasonable person have believed if placed in the same position as the defendant?
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.”
Matters that do not constitue consent
List the 7 points under 128A
Matters that do not constitute consent
- not protesting or offering physical resistance use of force
- Application of force to self or others, threats of force to self or others, or fear of force to self or others
- asleep or unconscious
- so affected by alcohol / drugs they cannot consent
- so affected by mental or physical impairment they cannot consent
- mistaken ID
- mistaken as to nature and quality of the act
Rape
What is the act and section for rape
Section 128, Crimes Act 1961
Sexual violation defined
(1) Sexual violation is the act of a person who—
(a) rapes another person
Rape
Section 128(1) defines sexual violation as (a)Rape or (b) U/L sexual connection.
Where is the definition of rape found?
Write it out as required in liability
Section 128, Crimes Act 1961
(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 to the connection; and
(b) without believing on reasonable grounds that person B consents to the connection.
Unlawful Sexual Connection
Section 128(1) defines sexual violation as (a)Rape or (b) U/L sexual connection.
Where is the definition of rape found?
Write it out as required in liability
Section 128(3), Crimes Act 1961
(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 conduct with a child under 12
Define Child
Section 132(6)(a) Crimes Act 1961
Child means a person under the age of 12 years; and
Proving Age
Define the case law relating to proof of age for children
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”.
Consent as a defence
Describe the ability to use consent as a defence under the sexual offences legislation
Consent is a defence for 128(2) and 128(3) (rape and u/l sexual connection, but cannot be used as a defence under Section 132 (all offences involvign sexual conduct with a child under 12)
Indecency
Define as per material
Cite case law
An act that is “indecent” has sexual connotations and involves conduct directed at a person that is offensive to public moral values.
R v Court
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant].”
SEXUAL CONDUCT WITH A YOUNG PERSON
UNDER 16
Define as per legislation required for liabilities
Section 134 Crimes Act 1961
Sexual conduct with young person under 16
(1) Every one who has sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.
(2) Every one who attempts to have sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.
(3) Every one who does an indecent act on a young person is liable to imprisonment for a term not exceeding 7 years.
**Young Person **
Define
Section 134 Crimes Act 1961
Sexual conduct with a young person under 16
(6) In this section,—
(a) young person means a person under the age of 16 years
**Defences to charges under 134 **
What are the three preconditions for a defence against a charge under 134
(sexual conduct with a young person)
Section 134A Crimes Act 1961
Defence to charge under section 134
It may provide a defence to a charge under section 134 if the defendant proves that at the time of the sexual activity:
• they had taken reasonable steps to ascertain that the young person was at least 16, and
• they believed on reasonable grounds that the young person was at least 16, and
• the young person consented.
Indecent assault
Define indecent assault
R v Leeson
The definition of “indecent assault” … is an assault accompanied with circumstances of indecency…
Indecent assault
What qualities of the assault must the Crown prove in cases of indecent assault
In these cases the prosecution must prove that:
• 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.
Assault
Define assault as per section 2
Section 2, Crimes Act 1961
Interpretation
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 grounds that he has, present ability to effect his purpose
Sexual Violation by Rape
Give ingredients
Section 128(1)(a)
Penalty 20 Years
1.1 A Person
1.2 Rapes
1.3 Another person
Sexual Violation by Unlawful Sexual Connection
Top and sides
Section 128(1)(b)
Penalty: 20 Years
- 1 A person
- 2 Has unlawful sexual connection
- 3 With another person
Assault with intent to Commit Sexual Violation
Top and sides
Section 129(2)
Penalty: 10 Years
- 1 A person
- 2 Assaults another person
- 3 With intent to commit sexual violation
- 4 Of the other person
Sexual Conduct with a Dependant Family Member
Top and sides
Section 131(1)
Penalty: 7 Years
- 1 A person
- 2 Has sexual connection
- 3 With a dependant family member under the age of 18 years
Sexual Conduct with a Child
Top and sides
Section 132(1)
Penalty: 14 Years
- 1 A person
- 2 Has sexual connection
- 3 With a child
Indecent Act on a Child
Top and sides
Section 132(3)
Penalty: 10 Years
- 1 Any Person
- 2 Does an indecent act
- 3 On a child
Sexual Conduct with a Young Person under 16
Top and sides
Section 134(1)
Penalty: 10 Years
- 1 A Person
- 2 Has sexual connection
- 3 With a young person
Indecent Act on a Young Person under 16
Top and sides
Section 134(3)
Penalty: 7 Years
- 1 Any Person
- 2 Does an indecent Act
- 3 On a young person
Indecent Assault
Top and sides
Section 135
Penalty: 7 Years
- 1 Any person
- 2 Indecently assaults
- 3 Another person
Incest
Section 130, Crimes Act 1961
Define relationships that are deemed incestuous
and the minimum chargeable age
parent and child
siblings
half siblings
grandparent and grandchild
Must be of or over 16 at the time of the offending
**Dependant Family member **
Under 18 years of age
Define dependant family member
- *Dependent family member defined**
(1) For the purposes of section 131, one person is a dependent family member of another person—
(a) if the other person has power or authority over him or her, and is—
(i) his or her parent, step-parent, foster parent, guardian, uncle, or aunt; or
(ii) a parent, step-parent, or foster parent of a person described in subparagraph (i); or
(iii) a child of his or her parent or step-parent; or
(iv) the spouse or de facto partner of a person described in subparagraph (i) or subparagraph (ii) or subparagraph (iii) or
(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
