Sexual Offences

Question 1

No presumption because of age

Answer 1

s127 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.

Question 2

Define - Sexual Violation

Answer 2

Sexual violation - s128(1) CA61
act of a person who—
(a) rapes another person; or
(b) has unlawful sexual connection with another person.

Question 3

Define - Rape

Answer 3

Rape - s128(2) CA61
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.

Question 4

Define - Unlawful Sexual Connection

Answer 4

Unlawful Sexual Connection - s128(3) CA61

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.

Question 5

Define - Sexual Connection (s2 CA61)

Answer 5

Sexual Connection - s2 CA61

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)

Question 6

Define - Genetalia

Case law

Answer 6

Genitalia
Section 2, Crimes Act 1961
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)

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.

Question 7

Define - Penetration

Answer 7

S2(1A), Crimes Act 1961

introduction to the slightest degree is enough to effect a connection

Question 8

Define - Penis

Answer 8

Penis
Section 2, Crimes Act 1961
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)

Question 9

Discuss - Matters not constituting to consent

Answer 9

s128A Allowing sexual activity does not amount to consent in some circumstances

(1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.

(2) A person does not consent to sexual activity if he or she allows the activity because of—
(a) force applied to him or her or some other person; or
(b) the threat (express or implied) of the application of force to him or her or some other person; or
(c) the fear of the application of force to him or her or some other person.

(3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.
(4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
(5) A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
(6) One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.
(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.
(8) This section does not limit the circumstances in which a person does not consent to sexual activity.

Question 10

Discuss - Reasonable grounds (Subjective and Objective Tests)
Case Law

Answer 10

Reasonable grounds (subjective & objective tests)

1. Whether or not the complainant was consenting is a subjective test from the complainant’s point of view, i.e. what was the complainant thinking at the time?
2. If it is established that the complainant was not consenting, the next question is whether or not the defendant believed he/she was consenting at the time i.e. what was the defendant thinking at the time?
3. The objective test is: 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”.

Question 11

Discuss age (case law)

Answer 11

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.”

Question 12

Discuss - Indecent Act

Case law

Answer 12

Indecent Act
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]”.

Question 13

Indecent Assault

• Define (case law - R v Leeson)
• Ingredients
• 3 things crown must prove

Answer 13

s135 CA61 Indecent Assault - every one is liable to imprisonment for a term not exceeding 7 years who indecently assaults another person.

R v Leeson
“The definition of ’indecent assault’ … is an assault accompanied with circumstances of indecency …”

Indecent Assault
In these cases the Crown must prove that:
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.

Question 14

Incest

Answer 14

Incest - s130 CA61

(1) Sexual connection is incest if—
(a) it is between 2 people whose relationship is that of parent and child, siblings, half-siblings, or grandparent and grandchild; and
(b) the person charged knows of the relationship.

(2) Every one of or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 10 years.

Question 15

Defences for sexual conduct with a young person

Answer 15

It is a defence to a charge under section 134 if the person charged proves that,—

(a) before the time of the act concerned, he or she had taken reasonable steps to find out whether the young person concerned was of or over the age of 16 years; and
(b) at the time of the act concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years; and
(c) the young person consented.

Question 16

Ingredients

• Assaults child
• Males assaults female

Answer 16

s194 Assault on a child, or by a male on a female

Every one is liable to imprisonment for a term not exceeding 2 years who—

(a) assaults any child under the age of 14 years; or
(b) being a male, assaults any female.

Question 17

Ill-treatment or neglect of child or vulnerable adult

Answer 17

195 Ill-treatment or neglect of child or vulnerable adult

(1) Every one is liable to imprisonment for a term not exceeding 10 years who, being a person described in subsection (2), intentionally engages in conduct that, or omits to discharge or perform any legal duty the omission of which, is likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult (the victim) if the conduct engaged in, or the omission to perform the legal duty, is a major departure from the standard of care to be expected of a reasonable person.

(2) The persons are—
(a) a person who has actual care or charge of the victim; or
(b) a person who is a staff member of any hospital, institution, or residence where the victim resides.

(3) For the purposes of this section and section 195A, a child is a person under the age of 18 years.

Question 18

Failure to protect child or vulnerable adult

Answer 18

195A Failure to protect child or vulnerable adult

(1) Every one is liable to imprisonment for a term not exceeding 10 years who, being a person described in subsection (2), has frequent contact with a child or vulnerable adult (the victim) and—
(a) knows that the victim is at risk of death, grievous bodily harm, or sexual assault as the result of—
(i) an unlawful act by another person; or
(ii) an omission by another person to discharge or perform a legal duty if, in the circumstances, that omission is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies; and
(b) fails to take reasonable steps to protect the victim from that risk.

(2) The persons are—
(a) a member of the same household as the victim; or
(b) a person who is a staff member of any hospital, institution, or residence where the victim resides.

(3) A person may not be charged with an offence under this section if he or she was under the age of 18 at the time of the act or omission.

(4) For the purposes of this section,—
(a) a person is to be regarded as a member of a particular household, even if he or she does not live in that household, if that person is so closely connected with the household that it is reasonable, in the circumstances, to regard him or her as a member of the household:
(b) where the victim lives in different households at different times, the same household refers to the household in which the victim was living at the time of the act or omission giving rise to the risk of death, grievous bodily harm, or sexual assault.

(5) In determining whether a person is so closely connected with a particular household as to be regarded as a member of that household, regard must be had to the frequency and duration of visits to the household and whether the person has a familial relationship with the victim and any other matters that may be relevant in the circumstances.

Question 19

Attempted sexual violation/assault with intent

Answer 19

Attempted sexual violation/assault with intent s129 CA61

(1) Every one who attempts to commit sexual violation is liable to imprisonment for a term not exceeding 10 years
(2) Every one who assaults another person with intent to commit sexual violation of the other person is liable to imprisonment for a term not exceeding 10 years

Question 20

s132(4)?

Answer 20

No defence that the person charged believed the child was of or over the age of 12y.

Question 21

s132(5)?

Answer 21

No defence that the child consented.

Question 22

Define Young Person

Answer 22

s134(6)(a) CA61 Young person means a person under the age of 16y.