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Criminal liabilities New Zealand > SEXUAL OFFENCES > Flashcards

SEXUAL OFFENCES Flashcards

1
Q

Criminal liability
Sexual violation by rape
Section 128 (1) (A) crimes act 1961
20 years

A
  1. a person
  2. rapes
  3. another person
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2
Q

Criminal liability
Sexual violation by unlawful sexual connection
Section 128 (1) (B), crimes act 1961
20 years

A
  1. a person
  2. has unlawful sexual connection
  3. with another person
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3
Q

Definition
Unlawful sexual connection
Section 128 (3)

A

Person A has unlawful sexual connection with person B if person A has sexual connection with the person B -
(A) without person B consent to the connection and
(B) without believing on reasonable grounds that person B consents to the connection.

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4
Q

Define penetration

A

Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection,
Section 2 (1), crimes act 1961

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5
Q

Define genitalia

Section 2 crimes act 1961

A

Genitalia includes surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is a male, female, or of indeterminable sex)

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6
Q

Define sexual connection

Section 2 crimes act 1961

A

(A) connection effected by the introduction into the genitalia or anus of one person, otherwise then for genuine medical purposes, of
(1) a part of the body of another person or
(2) and object held or manipulated by another person, or
(B) connection between the mouth or tongue of one person and a part of another persons genitalia or anus or
(C) the continuation of connection of it kind described in paragraph (A) or paragraph (B).

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7
Q

Case law
Genitalia
R v Koroheke

A

The genitalia comprises 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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8
Q

Define introduction

A

Introduction and penetration have the same meaning. Introduction to the slightest degree is enough to effect a connection.

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9
Q

Define penis

A

Penis includes a 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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10
Q

Define rape

A

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
Section 128 (2) crimes act 1961

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11
Q

Define consent

A

Consent is a person conscious and voluntary agreement to do something desired or proposed by another.

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12
Q

Caselaw
Consent
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 judgement.

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13
Q

Seven matters that do not constitute consent

Section 128A, crimes act 1961

A

Not protesting or offering physical resistance to use of force
Application of force to self or other, threats of force to self or other, fear of force to self or others
Asleep or unconscious
So affected by drugs or alcohol they cannot consent
So affected by mental or physical and human they cannot consent
Mistaken ID
Mistaken as to nature and quality of the act
(Note: only include those relevant to this scenario, if any)

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14
Q

Discussion
Reasonable grounds
Three step process

A

Subjective test – step one – absence of consent
What was the complainant thinking at the time? Was he /she consenting?
Subjective test – step two – belief in consent
If he/she were not consenting did the offender believe the complainant was consenting? I.e. what was the offender thinking at the time?
Objective test – step three – reasonable grounds for belief in consent
If the offender believed the complainant was consenting, was that belief reasonable in the circumstances. I.e. what would a reasonable person have believed if placed in the same position as the defendant.

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15
Q

Case law

R v Gutuama

A

Under the objective test the crown must prove that no reasonable person in the accused shoes could have thought that (the complainant) was consenting.

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16
Q

Criminal liability
Assault with intent to commit sexual violation
Section 129 (2) crimes act 1961
10 years

A
  1. a person
  2. assaults another person
  3. with intent to commit sexual violation
  4. of the other person
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17
Q

A d t b a, in s f it l w the a p, the c o t o.

A

R v Mohan

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18
Q

A f o p t I n s, there must b a f I or f p t e t a.

A

R v Waaka

19
Q 
Define sexual violation
Section 128 (1), c a 1961
A

Sexual violation is the act of a person who
(A) rapes another person or
(B) has unlawful sexual connection with another person

20
Q

Criminal liability
Sexual conduct with dependent family member
Section 131 (1), crimes act 1961
7 years

A
  1. everyone
  2. has sexual connection
  3. with a dependent family member under 18 years
21
Q

Define proof of penetration

A

Proof may be provided by
The complainant’s evidence
Medical examination (DNA, injuries)
Accused admissions

22
Q

Discussion
Proving age
R v Forrest and Forrest

A

The best evidence possible in the circumstances should be adduced by the prosecution in proof of (the victims) age R v F and F.

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

23
Q

Criminal liability
Sexual conduct with a child under 12
Section 132 (1), crimes act 1961
14 years

A
  1. everyone
  2. has sexual connection
  3. with a child
24
Q 
Define child
Section 132 (6) (A) crimes act 1961
A

Child means a person under the age of 12 years

25
Q

Criminal liability
Sexual conduct with a child under 12
Section 132 (3) crimes act 1961
10 years

A
  1. everyone
  2. does an indecent act
  3. on a child
26
Q

Define indecent act

A

And act that is indecent and has sexual connotations and involves conduct directed at a person that is offensive to public moral values.

27
Q

Indecency

R v Court

A

Indecency means conduct that right-thinking people will consider in an affront to the sexual Modesty of (the complainant).

28
Q

Discussion consent of a child

A

If such an act is done with the consent of the child, it is immaterial whether
The offender does the act on the child
The child does the act on the offender
It is mutual

29
Q

Criminal liability
Sexual conduct with a young person under 16 years
Section 134 (1), crimes act 1961
10 years

A
  1. everyone
  2. has sexual connection
  3. with a young person
30
Q 
Define what is a young person
Section 134 (6) (A), crimes act 1961
A

Young person means a person under the age of 16 years

31
Q

Criminal liability
Sexual conduct with a young person under 16 years
Section 134 (3) crimes act 1961
Seven years

A
  1. everyone
  2. does an indecent act
  3. on a young person
32
Q

Criminal liability
Indecent assault
Section 135 crimes act 1961
Seven years

A
  1. everyone
  2. indecently assaulted
  3. another person
33
Q

Define indecent assault

R v Leeson

A

The definition of indecent assault is an assault accompanied with circumstances of indecency.

34
Q

Define an act that is in decent

A

And act that is a indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values.

35
Q

Lesson note on indecent assault

A

Your explanation must include
What constituted an assault including how the act was intentional
What made the assault indecent.

36
Q

Define objects

A

This provision applies to anything other than a part of his body, used by the offender to penetrates the complainant’s genitalia or anus. For example this could include a vibrator or a deodorant bottle.

37
Q

Case law

R v Harpur

A

The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. The defendants conduct (may) be considered and it’s entirety. Considering how much remains to be done is always relevant although not determinative.

38
Q

List the three offences covered under section 134 of the crimes act sexual contact with a young person under 16.

A

Has sexual connection (10 years)
Attempts to have sexual connection (10 years)
Does an indecent act on a young person (7 years)

39
Q

List of the ingredients of incest section 130 crimes act 1961

A

Sexual connection is incest is
(A) it is between two people who is relationship is that off parent and child, siblings, half siblings, or grandparents and grandchild; and
(B) that person charged knows of the relationship
(2) everyone of or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 10 years.

40
Q

For a charge of incest to be proved the offender is required to have a certain knowledge what is that knowledge?

A

The person charged must know of the relationship

41
Q

What is the statutory defence to a charge of sexual contact with a young person? (Section 134 a) crimes act 1961

A

They believed the person was over the age of 16 and
They had taken reasonable steps to establish the correct age and
The person consented

42
Q

In all cases of sexual violation what must the prosecution prove beyond reasonable doubt?

A

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 beliefs were not reasonable

43
Q

Discuss no presumption because of age

Section 127 crimes act 1961

A

This provision means that any person of any age is capable, in a legal sense, of being involved in sexual connection.
Therefore it would not be a defence to a sex related charge to say that either of the parties was too old or too young to have sexual connection.

Criminal liabilities New Zealand (20 decks)

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