Sexual offences Flashcards
List two forms of sexual violation
Sexual violation by rape and sexual violation by unlawful sexual connection
Discuss the penalty provisions for sexual violation as set out in S128B of the Crimes Act 1961
Section 128B of the crimes act outlines that the punishment fir sexual violation is imprisonment for a term not exceeding 20 years, and imprisonment should always be imposed on conviction unless there are special circumstances that justify a departure from the rule
Define the term genitalia
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)
Section 2 Crimes Act
In negating consent the Crown has to prove 3 things, list the three things
In proving consent was not present in a case of sexual violation the crown must prove that:
- the victim did not consent, or
- the victims consent was not valid, or
- the accused did not believe on reasonable grounds that the victim was consenting
Discuss the two elements that need to be proved in a charge of Assault with intent to commit sexual violation, S 129 CA61
The two elements to be proved in the charge of Assault with intent to commit sexual violation are that the offender
- Assaulted the victim and
- Intended to commit sexual violation
What is the definition of consent
Consent is a persons conscious and voluntary agreement to something desired or proposed by another
Define sexual connection
(a) Connection effected by the introduction into the genetalia 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 persons genitalia or anus or
(c) the continuation of a kind described in paragraph (a) or paragraph (b)
Discuss the statutory defence for 134A - sexual conduct with a young person under 16 years
There is a statutory defence for sexual conduct with a young person. This applies only when
- The person charged can show they took reasonable steps to establish the young person was aged 16 or over, and
- The person charged believed on reasonable grounds that the young person was aged 16 o over, and
- The young person consented to that sexual connection
Define sexual conduct with a child under 12
Sexual conduct with a child is
- Sexual connection with a child
- Attempted sexual connection with a child
- Does an indecent act on a child
Discus whether a 16 year old girl can be charged with having consensual sex with a 14 year old boy
Yes, the girl can be charged as it is an offence of sexual conduct with a young person under 16 years (S134 CA 61)
Define indecent act
An indecent act has sexual connotations and involves conduct directed at a person that is offensive to public moral values.
Indecency means “conduct that right thinking people will consider an affront to the sexual modesty of the complainant
R V Court
If such act is done with the consent of the YP/Child, it is immaterial whether
- the offender does the act on a child
- the child does the act on the offender
- the act is mutual
Doing an indecent act on a YP/Child includes indecently assaulting the YP/Child Section 134(6)(a)/132(6)(a) CA 61
List three grounds on which a direction can be made under S103(3) of the evidence Act 2006 in regards to a witness giving evidence in an alternative way
Under S103(3)
A direction under subsection (1) that a witness is to give evidence in an alternative way, may be made in the grounds of -
(a) The age or maturity of the witness
(b) the physical, intellectual, psychological or psychiatric impairment of the witness
(c) The trauma suffered by the witness
(d) The witness’ fear of intimidation
(e) The linguistic or cultural background or religious beliefs of the witness
(f) The nature of the proceeding
(g) The nature of the evidence that the witness is expected to give
(h) The relationship of the witness to any party to the proceeding
(i) The absence or likely absence of any witness from New Zealand
(j) Any other ground likely to promote the purpose of the act
Discuss the requirement under reg28 of the Evidence Regulations 2007
Prosecutor to give transcript to defence before preliminary hearing or defended summary hearing
(1) The prosecutor must ensure a typed transcript of a working copy is given to the defendant or the defendants lawyer-
(a) If there is to be a preliminary hearing, at least 7 days before the date on which a video record is given in evidence at a preliminary hearing;
(b) If the defendant is to be tried summarily, as soon as is reasonably practicable after the defendant has pleaded not guilty
(2) The typed transcript is to be prepared by Police
(3) The court may adjourn the hearing to allow further time for the defendant to consider the transcript if satisfied that sub-clause (1) has not been complied with
List three ways under S105 that a witness may give evidence
The witness may give evidence
(i) While in the courtroom but unable to see the defendant or some other specified person (screens)
(ii) From an appropriate place outside the courtroom, either in New Zealand or elsewhere (CCTV) or
(iii) By a video record made before the hearing of the proceeding
It is important to preserve trace evidence in sexual assault cases. List four things that victims should refrain from (where possible) before a medical examination
Remind the victim
- No eating or drinking
- No going to the toilet (if necessary, use a toxicology kit to capture urine and ask female not to wipe)
- No washing or showering
- No washing of hands or biting fingernails
- No smoking
List the points that you would cover with a victim to explain the medical forensic examination procedure
- That the examination will be conducted by a medical forensic practitioner specially trained in examining victims of sexual assault.
- The benefits of a full medical forensic exam including
i. the potential to their physical, sexual and mental health
ii. How the examination can help Police obtain evidence to apprehend the offender - the expected time for the examination and, if appropriate, possible outcomes of the examination
- Ask the victims if they have any concerns about the gender of the practitioner conducting the examination and advise that you will do your best to accommodate their wishes (Research indicates that most ASA victims identify gender as an issue and indicate a preference for examination by a female
When interacting with victims of sexual offences what actions should you take to provide a safe and secure environment in which they may regain some control of their lives
- Conduct your dealings in a sensitive and concerned manner
- Accept they are telling the truth until/unless there is evidence to prove the contrary
- Listen to what they tell you, giving them an opportunity to tell their account in their words, even just vent their feelings.
- Establish whether they require medical attention
- Treat them courteously
- Explain the process you are following and why you need to follow that process and ask certain questions
- Advise them of the local counselling services available.
List three area to consider when determining “seriousness of physical abuse”
There are three areas to consider in determining whether physical abuse is serious and therefore meets the threshold for a referral as a CPP case under this protocol
- The action of the abuse
- The injury inflicted, and
- The circumstances (factors of the case)