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CIB Modules SF > Sexual Offences > Flashcards

Sexual Offences Flashcards

1
Q

Section 128B(1) CA61

A

Every one who commits sexual violation is liable to imprisonment for a term not exceeding 20 years

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2
Q

Section 128B(2) CA61

A

A person convicted of sexual violation must be sentenced to imprisonment unless, having regard to the matters stated in subsection (3), the court thinks that the person should not be sentenced to imprisonment.

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3
Q

Section 128B(3) CA61

A

The matters are (referred to in 128B(2))-

(a) the particular circumstances of the person convicted; and
(b) the particular circumstances of the offence, including the nature of the conduct constituting it.

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4
Q

Sexual violation

A

(1) Sexual violation is the act of a person who:
(a) rapes another person; or
(b) has unlawful sexual connection with another person.

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5
Q

Rape definition

A

Sec 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 to the connection; and
(b) without believing on reasonable grounds that person B consents to the connection.

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6
Q

U/L Sexual Connection definition

A

Sec 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.

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7
Q

Sec 128 (4) CA61

A

One person may be convicted of the sexual violation of another person at a time when they were married to each other.

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8
Q

Sexual Connection means…

A

Sec 2, 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)

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9
Q

Penetration/Introduction

A

Section 2, CA61:

“sexual connection”, introduction to the slightest degree is enough to effect a connection.

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10
Q

Proving Penetration

A
  • the complainant’s evidence
  • medical examination, including physical injuries and DNA evidence
  • the defendant’s admissions.
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11
Q

Genitalia

A

Sec 2, CA61:
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)

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12
Q

R v Koroheke

- genetalia

A

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.

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13
Q

Penis

A

Sec 2, CA61:
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)

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14
Q

Presumption because of age

A

Section 127, CA61:

There is no presumption of law that a person is incapable of sexual connection because of his or her age.

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15
Q

Consent - Sub/Obj test

A

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).

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16
Q

Consent

A

“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.

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17
Q

R v Cox

A

Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment”.

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18
Q

R v Gutuama

A

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”.

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19
Q

Matters not constituting consent

A

Sec 128A CA61 (in brief):

  • does not protest or offer physical resistance to the activity.
  • force applied to him or her or some other person; or
  • fear or threat (express or implied) of the application of force to him or her or some other person
  • asleep or unconscious.
  • so affected by alcohol or some other drug
  • affected by an intellectual, mental, or physical condition or impairment
  • Mistaken about who the other person is.
  • Mistaken about its nature and quality.
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20
Q

R v Koroheke

- consent

A

It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.

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21
Q

Sexual violation by rape

A

Sec 128, CA61 (1)(a)

A person rapes another person

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22
Q

Sexual violation by unlawful sexual connection

A

Sec 128, CA61 (1)(b)

A person has unlawful sexual connection with another person

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23
Q

Attempted Sexual Violation

A 
Sec 129(1), CA61
Every one who attempts to commit sexual violation is liable to imprisonment for a term not exceeding 10 years.
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24
Q

Assault with intent to commit sexual violation

A 
Sec 129(2), CA61
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.
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25
Q

R v Mohan

A

Intent involves “a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence …”

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26
Q

Intentionally meaning

A

A person does something “intentionally” if they mean to do it; they desire a specific result and act with the aim or purpose of achieving it.

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27
Q

R v Waaka

A

A “fleeting or passing thought” is not sufficient; there must be a “firm intent or a firm purpose to effect an act”.

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28
Q

R v Collister

A

… the demeanour of the prisoner and the circumstances of the case are such that an ordinary reasonable man would understand that a demand for money was being made on him …

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29
Q

Circumstances of intent

A
  • the offender’s actions and words before, during and after the event
  • the surrounding circumstances
  • the nature of the act itself.
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30
Q

R v Harpur

- attempt

A

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”.

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31
Q

R v Harpur

- attempt proximate

A

“[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. Considering how much remains to be done … is always relevant, though not determinative.”

32
Q

Assault definition

A

Sec 2, CA61
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

33
Q

Sexual Conduct with a child

3 x acts

A

Sec 132, CA61

(1) Every one who has sexual connection with a child is liable to imprisonment for a term not exceeding 14 years.
(2) Every one who attempts to have sexual connection with a child is liable to imprisonment for a term not exceeding 10 years.
(3) Every one who does an indecent act on a child is liable to imprisonment for a term not exceeding 10 years.

34
Q

Sec 132(4)

A

It is not a defence to a charge under this section that the person charged, believed that the child was of or over the age of 12 years.

35
Q

Sec 132(5)

A

It is not a defence to a charge under this section that the child consented.

36
Q

Sec 132(6)

A

In this section,—

(a) child means a person under the age of 12 years; and
(b) doing an indecent act on a child includes indecently assaulting the child.

37
Q

Cox v R

- child consent

A

“Although we do not exclude the possibility that a child of ten or eleven may consent to sex, the circumstances that would justify that conclusion would be exceptional if not rare. A ten or eleven year old child may know what sexual intercourse is. She may indicate her agreement … but save in such exceptional and rare circumstances, she will not, simply because of her age and stage of sexual development, understand the significance of the act. In that sense, therefore, any consent she may purport to give will not be a legal consent because it will not be either rational or informed.”

38
Q

Proof of age

A

In practice this generally involves producing the complainant’s birth certificate in conjunction with independent evidence that identifies the complainant as the person named in the certificate.

39
Q

R v Forrest and Forrest

A

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”

40
Q

Indecent act

- CA61 definition

A

Sec 2, CA61
For the purposes of this Act, one person does an indecent act on another person whether he or she—
(a) does an indecent act with or on the other person; or
(b) induces or permits the other person to do an indecent act with or on him or her.

41
Q

Indecent act

- general meaning

A

An ‘indecent act’ is generally accepted to be an act accompanied by circumstances of indecency.

42
Q

R v Court

A

Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant]”.

43
Q

Sexual Conduct with a YP

- 3 x acts

A

Sec 134, CA61

(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.

44
Q

Sec 134(4) CA61

A

No person can be convicted of a charge under this section if he or she was married to the young person concerned at the time of the sexual connection or indecent act concerned.

45
Q

Sec 134(5) CA61

A

The young person in respect of whom an offence against this section was committed cannot be charged as a party to the offence if the person who committed the offence was of or over the age of 16 years when the offence was committed.

46
Q

Sec 134(6) CA61

A

In this section,—

(a) young person means a person under the age of 16 years; and
(b) doing an indecent act on a young person includes indecently assaulting the young person.

47
Q

Defence to charge under Sec 134 CA61

A

Sec 134A, CA61
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.

48
Q

Indecent Assault

A

Sec 135, CA61

Every one is liable to imprisonment for a term not exceeding 7 years who indecently assaults another person.

49
Q

R v Leeson

A

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

50
Q

R v Court

- indecent assault

A

On a charge of indecent assault the prosecution must not only prove that the accused intentionally assaulted the victim, but that in doing so he intended to commit an indecent assault, i.e. an assault which right-minded persons would think was indecent.

51
Q

Sexual conduct by coercion

A

Sec 129A, CA61

(1) Every one who has sexual connection with another person knowing that the other person has been induced to consent to the connection by threat is liable to imprisonment for a term not exceeding 14 years.
(2) Every one who does an indecent act on another person knowing that the other person has been induced to consent to the act by threat is liable to imprisonment for a term not exceeding 5 years.

52
Q

Incest

A

Sec 130, 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.

53
Q

Sexual conduct with dependant family member

- x 3 acts

A

(1) Every one is liable to imprisonment for a term not exceeding 7 years who has sexual connection with a dependent family member under the age of 18 years.
(2) Every one is liable to imprisonment for a term not exceeding 7 years who attempts to have sexual connection with a dependent family member under the age of 18 years.
(3) Every one is liable to imprisonment for a term not exceeding 3 years who does an indecent act on a dependent family member under the age of 18 years.

54
Q

Can a dependant family member be charged with the offence?

A

No

55
Q

Is it a defence to a charge under Sec 131, that the other person consented?

A

Sec 131(5) It is not a defence to a charge under this section that the dependent family member consented.

56
Q

Dependant Family Member defined

A

Sec 131A, CA61

(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; or
(c) if he or she is living with the other person as a member of the other person’s family, and the other person is not a person referred to in paragraph (a), but has—
(i) power or authority over him or her; and
(ii) a responsibility for, or significant role in, his or her care or upbringing.

57
Q

Meeting young person following grooming

A

Sec 131B, CA61
Meeting young person … following sexual grooming, etc
(1) Every person is liable to imprisonment for a term not exceeding 7 years if,—
(a) having met or communicated with a person under the age of 16 years (the young person) on an earlier occasion, he or she takes one of the following actions:
(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
(b) at the time of taking the action, he or she intends—
(i) to take in respect of the young person an action that, if taken in New Zealand, would be an offence against this Part, or against any of paragraphs (a)(i), (d)(i), (e)(i), (f)(i), of section 98AA(1); or
(ii) that the young person should do on him or her an act the doing of which would, if he or she permitted it to be done in New Zealand, be an offence against this Part on his or her part.

58
Q

Sec 131B, what else is included in the meaning of “young person”?

A 
Sec 131B(1A):
A constable who pretends to be a young person under the age of 16 years (the fictitious young person) if the offender, when taking any of the actions described in subsection (1), believed that the fictitious young person was a young person under the age of 16 years.
59
Q

A defence to a charge under sec 131B CA61 (grooming)

A

Sec 131B, CA61:

(2) It is a defence to a charge under subsection (1) if the person charged proves that,—
(a) before the time he or she took the action concerned, he or she had taken reasonable steps to find out whether the young person was of or over the age of 16 years: and
(b) at the time he or she took the action concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years.

60
Q

Sexual exploitation of significantly impaired person

- 3 x acts

A

Sec 138, CA61
Sexual exploitation of person with significant impairment
(1) Every one is liable to imprisonment for a term not exceeding 10 years who has exploitative sexual connection with a person with a significant impairment.
(2) Every one is liable to imprisonment for a term not exceeding 10 years who attempts to have exploitative sexual connection with a person with a significant impairment.
(3) For the purposes of subsections (1) and (2), a person has exploitative sexual connection with a person with a significant impairment (the “impaired person”) if he or she—
(a) has sexual connection with the impaired person knowing that the impaired person is a person with a significant impairment; and
(b) has obtained the impaired person’s acquiescence in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment.
(4) Every one is liable to imprisonment for a term not exceeding 5 years who exploitatively does an indecent act on a person with a significant impairment.
(5) For the purposes of subsection (4), a person exploitatively does an indecent act on a person with a significant impairment (the “impaired person”) if he or she—
(a) does an indecent act on the impaired person knowing that the impaired person is a person with a significant impairment; and
(b) has obtained the impaired person’s acquiescence in, submission to, participation in, or undertaking of the doing of the act by taking advantage of the impairment.

61
Q

What is does being significantly impaired mean:

A

Sec 138(6), CA61:
For the purposes of this section, a significant impairment is an intellectual, mental, or physical condition or impairment (or a combination of 2 or more intellectual, mental, or physical conditions or impairments) that affects a person to such an extent that it significantly impairs the person’s capacity—
(a) to understand the nature of sexual conduct; or
(b) to understand the nature of decisions about sexual conduct; or
(c) to foresee the consequences of decisions about sexual conduct; or
(d) to communicate decisions about sexual conduct.

62
Q

Compelling indecent act with animal

A

Sect 142A, CA61
Compelling indecent act with animal
(1) Every one is liable to imprisonment for a term not exceeding 14 years who compels any other person, by the actual or threatened application of force to that other person or some other person, to perform, or to submit to or acquiesce in, any act of indecency with an animal, whether or not involving penetration.

63
Q

Bestiality

A

Sec 143, CA61

(1) Every one is liable to imprisonment for a term not exceeding 7 years who commits bestiality.
(2) This offence is complete upon penetration.

64
Q

Indecency with animal

A

Sec 144, CA61

Every one is liable to imprisonment for a term not exceeding 3 years who commits any act of indecency with an animal.

65
Q

Sexual conduct with children outside NZ

A

Sec 144A, CA61
Sexual conduct with children and young people outside New Zealand
(1) Every one commits an offence who, being a New Zealand citizen or ordinarily resident in New Zealand,—
(a) does outside New Zealand, with or on a child under the age of 12 years, an act to which subsection (2) applies [132(1-3)]; or
(b) does outside New Zealand, with or on a person under the age of 16 years, an act to which subsection (3) applies [134(1-3)]; or
(c) does outside New Zealand, with or on a person under the age of 18 years, an act to which subsection (4) applies (Prostitution Reform Act 2003).
PENALTY: same as what they do

66
Q

Sec 144B CA61 consent of Attorney-General

A
  • no charges may be laid

- may be arrested or WTA issued and executed

67
Q

Organising child sex tours

A

Sec 144C, CA61
Organising or promoting child sex tours
(1) Every one is liable to imprisonment for a term not exceeding 7 years who—
(a) Makes or organises any travel arrangements for or on behalf of any other person with the intention of facilitating the commission by that other person of an offence against section 144A of this Act, whether or not such an offence is actually committed by that other person; or
(b) Transports any other person to a place outside New Zealand with the intention of facilitating the commission by that other person of an offence against section 144A of this Act, whether or not such an offence is actually committed by that other person; or
(c) Prints or publishes any information that is intended to promote conduct that would constitute an offence against section 144A of this Act, or to assist any other person to engage in such conduct.

68
Q

Prohibition on making intimate visual recording

A

Sec 216H CA61
Everyone is liable to imprisonment for a term not exceeding 3 years who intentionally or recklessly makes an intimate visual recording of another person.

69
Q

Section 44 of the Evidence Act 2006

A

Sexual experience of complainants in sexual cases.
Generally, no evidence or questions (except with the judge’s permission) can be put to the complainant about their sexual experience with any person other than the defendant.

70
Q

Section 87 of the Evidence Act 2006

A

Protects a witness from having to state their address and having questions put to them about that information. This includes not only the name and number of the street, but also the name of the town or community the witness lived in.
However, these details may be disclosed where the judge determines that they are directly relevant to the facts in issue and that to exclude them would be contrary to the interest of justice.

71
Q

Section 88 of the Evidence Act 2006

A

Protects a complainant from having questions put to them or to a witness about the complainant’s occupation, or having evidence given, or statements/remarks made about the complainant’s occupation.

72
Q

Section 121 Evidence Act 2006

A

In any criminal proceeding, the complainant’s evidence does not have to be corroborated.

This is especially important in cases of a sexual nature, where the offence is often committed with no independent evidence to corroborate the victim’s account.

73
Q

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

A

Sec 194, CA61
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.

74
Q

Ill-treatment or neglect of child or vulnerable adult

A

Sec 195, CA61

(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.

75
Q

Failure to protect child

A

s195A Crimes Act 1961 imposes criminal liability in some situations where it is known a child (or vulnerable adult) is at risk of harm but where no action is taken.
The offence applies to:
• members of the same household as the victim
• people who are staff members of any hospital, institution or residence where the victim resides.
Criminal liability will arise if such a person has frequent contact with a child (or vulnerable adult) and:
• knows (mens rea) the victim is at risk of death, grievous bodily harm or sexual assault as a result of the acts or omissions of another person; and
• fails (actus reus) to take reasonable steps to protect the victim from that risk.

76
Q

Victim defined

A

Victim’s right Act 2002
victim
(a) means—
(i) a person against whom an offence is committed by another person; and
(ii) a person who, through, or by means of, an offence committed by another person, suffers physical injury, or loss of, or damage to, property; and
(iii) a parent or legal guardian of a child, or of a young person, who falls within subparagraph (i) or subparagraph (ii), unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
(iv) a member of the immediate family of a person who, as a result of an offence committed by another person, dies or is incapable, unless that member is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
(b) for the purposes only of sections 7 and 8, includes—
(i) a person who, through, or by means of, an offence committed by another person, suffers any form of emotional harm; and
(ii) a parent or legal guardian of a child, or of a young person, who falls within subparagraph (i), unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
(c) despite paragraphs (a) and (b), if an offence is committed by a person, does not include another person charged (whether as a principal or party or accessory after the fact or otherwise) with the commission of, or convicted or found guilty of, or who pleads guilty to,—
(i) that offence; or
(ii) an offence relating to the same incident or series of incidents as that crime or offence

77
Q

ASA - 12 key process steps (in brief)

A 
1 - Initial Actions on contact
2 - Case referral
3 - Providing specialist support
4 - Preliminary Interview
5 - Information feedback
6 - Medical examination
7 - Formal interview
8 - Investigation and evidence assessment
9 - Resolution options
10 - Prosecution
11 - Final actions and record keeping
12 - Preventative opportunities and responsibilities

CIB Modules SF (15 decks)

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