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Davies Study > Sexual Offences > Flashcards

Sexual Offences Flashcards

1
Q

What is the definition of genitalia and what is the relevant case law?

A

The external organs of reproduction. The term genitalia literally means the organs of generation, and therefore it does not include pubic hair or breasts. It 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)

The relevant case law is R V Koroheke - the genitalia comprise the reproduction organs, interior and exterior. They include the vulva and labia, both interior and exterior, at the opening of the vagina.

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2
Q

What is the definition of a penis?

A

The male organ of reproduction. It 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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3
Q

Proof of penetration can be established by what 3 things?

A
  1. The complainant’s evidence
  2. A medical examination including injuries and DNA evidence
  3. The defendant’s admissions.
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4
Q

What is the definition of rape?

A

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 consented to the connection

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5
Q

What are the ‘tops and sides’ of rape?

A

Crimes Act 1961 section 128(1)(a)
Max 20 year imprisonment

A person

Rapes

Another person.

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6
Q

What is the definition of consent?

A

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

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7
Q

What are the different tests relating to consent?

A

Subjective test - what was the victim thinking at the time?

Subjective test - belief in consent - what was the defendant thinking at the time?

Objective test - what would a reasonable person have believed if placed in the same position as the defendant?

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8
Q

What is the definition of ‘sexual connection’ outlined in Section 2?

A

(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 and 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

What are the ‘tops and sides’ of sexual violation by unlawful sexual connection?

A

Crimes Act 1961, Section 128 (1) (b)
Max imprisonment 20 years

A person

Has unlawful sexual connection

with another person.

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10
Q

Describe what connection in regards to ‘mouth and tongue’ is required in unlawful sexual connection?

A

In the case of oral sexual connection, it is not necessary for there to be any penetration. Any touching of a person’s genitalia or anus with another person’s mouth or tongue is sufficient.

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11
Q

Describe where the term ‘a continuation of such acts’ fits into unlawful sexual connection?

A

This captures situations where sexual activity is commenced consensually, but consent is later withdrawn.

There is an obligation on a person to stop sexual activity at the point they realise the other person is, or may be no longer willing.

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12
Q

What was held in R V Cox?

A

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

It goes further regarding children consenting to sex:

Even where she indicates an agreement to the act occurring, no reasonable adult would have grounds for believing that a ten or eleven year old girl has the experience or maturity to understand the nature and significance of the act.

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13
Q

What was held in R V Gutuama?

A

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

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14
Q

Section 128A covers that - allowing sexual activity does not amount to consent in some circumstances.

What are they?

A

1FADIMN

(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.

(R v KOROHEKE)

(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. (Cannot understand the situation and give rational or reasoned consent)
(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.

(This includes indecent acts that without the persons’s consent would be an indecent assault)

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15
Q

What case law relates to fear of force in sexual offence cases?

A

R V Koroheke states;

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 cooperate, is not true consent.

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16
Q

When must consent be given?

A

At the time of the sexual activity.

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17
Q

With regards to ‘penetration’ and ‘introduction into’ what extent of penetration is required for sexual violation?

A

These two terms mean the same thing.

Section 2(1A) Introduction to the slightest degree is enough to effect a connection.

Any degree of penetration, no matter how slight or fleeting, is sufficient.

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18
Q

What are the acts and sections for attempted sexual violation and assault wth intent to commit sexual violation?

What are the elements?

A

Attempted sexual violation
Crimes Act 1961, Section 129 (1)
Max 10 years imprisonment

A person

Attempts to commit sexual violation

Assault with intent to commit sexual violation
Crimes Act 1961, Section 129(2)
Max 10 years imprisonment

A person

Assaults another person

With intent to commit sexual violation of the other person.

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19
Q

What intention is required by the defendant in attempted sexual violation?

A

The defendant intended to commit the full act of sexual violation, and acted as he did for the purpose of achieving that aim.

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20
Q

What must the crown prove in attempted sexual violation?

A
  • the defendant intended to have sexual connection with the complainant, and
  • took a real and substantive step toward that aim, and
  • the complainant did not consent to the intended sexual connection, and
  • the defendant did not believe in reasonable grounds that the complainant was consenting.

(Not believing on reasonable grounds includes being reckless as to whether or not the complainant was consenting)

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21
Q

What case law relates to attempts?

A

R V Harpur states that an attempt is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

The defendants conduct can be viewed cumulatively up to a point where the conduct in question stops. Considering what remains to be done is relevant, though not determinative.

Attempts - question of law.

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22
Q

What must be proved for assault with intent to commit sexual violation?

A

It must be proved that at the time the defendant assaulted (must be proof of assault) the complainant he;

  • Intended to have sexual connection with the complainant, and
  • the complainant did not consent to the sexual connection, and
  • the defendant did not believe in reasonable grounds that the complainant was consenting.
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23
Q

What is the best evidence to prove a child or young person’s age?

What case law relates to this?

A

The best evidence is a birth certificate and a person who can identify the child (eg. Mother)

R V Forrest and Forrest states that the best possible evidence in the circumstances should be adduced by the prosecution in proof of the victim’s age. Eg a birth certificate and a person who can identify the child.

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24
Q

What is the act and section for sexual conduct with a young person under 16?

What are the elements?

(Includes marriage and party to rules)

A

Sexual conduct with a young person under 16
Crimes Act 1961, section 134

(1) has sexual connection with a young person - 10 years imprisonment
(2) attempts to have sexual connection with a young person - 10 years imprisonment
(3) does an indecent act (indecent assault) on a young person - 7 years imprisonment.
(4) cannot be convicted of this charge under this section if married to the YP
(5) YP cannot be charged as a party to the offence if the offender was 16 or over
(6) (b) doing an indecent act on a YP includes indecently assaulting the YP.

25
Q

What age is a ‘young person’ and a ‘child’?

A

A young person is aged 12-15 years

A child is 11 years and under.

Sexual conduct offences are gender neutral.

26
Q

What is the act and section for a defence to sexual conduct of a young person under 16?

What would the defence have to prove?

A

Statutory defence - Section 134A
(1)
(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 believes on reasonable grounds that the young person was of or over the age of 16 years, and
(c) The young person consented.

(2)

(a) it is not a defence to a charge under 134 that the young person consented, and
(2) it is not a defence to a charge under 134 that the person charged believed that the young person concerned was of or over the age of 16 years

27
Q

What is the act and section of indecent assault?

A

Section 135 Crimes Act 1961
Max 7 years imprisonment

Indecently assaults another person.

Definition of indecent assault is R V Leeson. Assault accompanied by circumstances of indecency.

28
Q

What must be proved in indecent assault cases?

A
  • The defendant intentionally assaulted the complainant
  • The circumstances accompanying the assault were indecent
  • The defendant intended conduct that a reasonable person would find indecent

If consent is raised two elements must be proved;

  • The victim didn’t not consent to the assault, and
  • The defendant did not have an honest belief that the victim was consenting.
29
Q

What was held in R V Court?

A

Conduct that right thinking people would consider an affront to the sexual modesty of the complainant.

30
Q

What is the act and section, and the elements of incest?

A 
Section 130 (1) Crimes Act 1961
Max 10 years imprisonment

Sexual connection is incest if;

(a) it is between two 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

(Can be charged if 16 or over)

Example - adult half siblings having sex both knowing they are half siblings. Both would be charged.

31
Q

What act and section relates to indecent act on a child?

A

Section 132 (3)

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.

32
Q

When would you charge with sexual conduct (by sexual connection) with a child under 12, Section 132 of the Crimes Act 1961?

A

It would be extremely rare for a child under 12 to be able to understand the nature and significance of the sexual act, however, there is no age that a person is deemed to be incapable of consenting.

If it could be proved that the child was consenting, a charge under this section would be appropriate.

It is NOT a defence that the defendant believed the child was of or over 12 years old.

(Most of the time you would charge under sexual violation).

33
Q

If a female aged 17 has consensual sex with her step-father aged 35..

  1. Is he liable under Section 131(1), sexual conduct with a dependant family member?
  2. Is consent a defence?
  3. Can she be charged as a party to?
A
  1. Yes he is liable.
  2. Consent is not a defence under 131(5)
  3. 131(4) states that. The dependant family member cannot be charged as a party to the offence

Note - Dependant family member is under 18. This section also includes those who do not reside together, and includes Whanau who have a significant role in the dependant family member’s life / upbringing.

34
Q

What are the ASA timing categories?

A

Acute - 1 to 7 days

Non-acute - 7 days to 6 months

Historic - Over 6 months.

35
Q

What is the purpose of a pre-lim interview?

A

For the investigator to get a better understanding of what has occurred and to establish

  • what further investigative actions are required
  • whether an offence may have occurred
  • whether the victim wishes to make a formal complaint
36
Q

What should victims of a very recent sexual assault refrain from doing so that evidence is preserved?

A
  • eat or drink
  • wash or shower
  • wash hands or bite finger nails
  • go to the toilet. If they need to go use a toxicology kit to capture the urine and ask female victims not to wipe.
37
Q

What partner agencies do police work with when dealing with adult victims of sexual assault?

A
  • specialist support groups

- sexual assault medical practitioners

38
Q

What is the difference between sexual violation and indecent assault in regards to believing a person is consenting?

A

With sexual violation the offender has to believe on reasonable grounds (objective test - R V Gutuama) that the victim was consenting.

With indecent assault, the defendant only has to prove that he had an honest belief that the victim was consenting, it does not take into account what a ‘reasonable person’ would do if placed in their shoes.

39
Q

What is the primary difference between rape and unlawful sexual connection?

A

Rape involves the non-consensual penetration of the complainants genitalia by the offender’s penis.

Unlawful sexual connection includes any form of non-consensual penetration or oral connection with a person’s genitalia or anus.

40
Q

What must be proved in sexual violation cases?

A

The crown must prove beyond reasonable doubt;

  • there was an intentional act by the offender involving sexual connection with the complainant
    AND
  • the complainant didn’t consent to the sexual act
    AND
  • the offender didn’t believe the complainant was consenting
    OR
  • if the offender did believe the complainant was consenting, the grounds for such a belief were not reasonable.

(Therefore any investigation must prove the offender knew the victim didn’t consent, or the grounds for believing the victim consented were unreasonable.)

41
Q

What is section 128(4)

A

A spouse who sexually violates their partner has no legal defence due to the fact that the couple are legally married.

(Before 1986 this may have been a defence)

42
Q

What is covered in 128B?

A

(1) term of imprisonment for sexual violation is 20 years
(2) if convicted they must be sentenced to imprisonment unless the court thinks the person should not be sentenced to imprisonment
(3) these matters are - circumstances of the defendant and circumstances of the offence, including the nature of the conduct constituting it.

43
Q

What is unlawful sexual connection?

A

138(3)

Person A has unlawful sexual connection with person B of 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.

44
Q

When would a person breach ‘other than for genuine medical purposes’?

A

If a doctor penetrates a patient on the pretence of medical necessity, when it is actually for sexual gratification.

45
Q

What is no presumption because of age?

A

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

(Not a defence to say that either of the parties was too young or too old to have sexual connection)

46
Q

What is reluctant consent?

A

Consent may be given reluctantly or hesitantly and may be regretted afterwards.

But if consent is given in such a manner, provided it is without fear of the application of force or the result of actual threatened force, the act would not be rape.

47
Q

What are the different ‘tests’ in sexual violation cases?

A

Subjective - what was the victim thinking at the time? Were they consenting?

Subjective - purely subjective from defendant’s point of view.. what was the defendant thinking at the time? Did he believe the victim was consenting?

Objective - what would a reasonable person have believed if placed in the same position as the defendant? (R v Gutuama)

48
Q

What is recklessness as to consent?

A

Recklessness as to whether the complainant is consenting or not is not consistent with having a reasonable BELIEF in consent.

49
Q

What are some examples of attempts in the America’s Model Penal Code that the court has referred to?

A
  • Lying in wait, searching for or following the contemplated victim
  • Enticing the victim to go to scene of contemplated offence
  • Unlawful entry of scene, vehicle, structure of contemplated offence
50
Q

What is the act and section for sexual conduct with a child under 12?

What are the elements?

(Includes two circumstances that are not defences)

A

Sexual conduct with a child under 12
Crimes Act 1961, section 132

(1) has sexual connection with a child - 14 years imprisonment
(2) attempts to have sexual connection with a child - 10 years imprisonment
(3) does an indecent act (includes indecent assault) on a child - 10 years imprisonment.
(4) Not a defence that the person charged believed the child was of or over 12
(5) Not a defence that the child consented
(6) (b) doing an indecent act includes indecently assaulting the child

51
Q

What case law relates to children and consent?

A

R v COX - although we do not exclude the possibility that a child of 10 or 11 maybe be able to give full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare.

Even where she indicates an agreement to the act occurring, no reasonable adult would have grounds for believing that a 10 or 11 year old girl had the experience or maturity to understand the nature and significance of the act.

52
Q

What is an indecent act?

A

An act that is accompanied by circumstances of indecency. It has sexual connotations and involves conduct directed at a person that is offensive to public moral values.

R V COURT - conduct that right thinking people will consider an affront to the sexual modesty of the complainant.

53
Q

What is the objective test for indecency?

A

Indecency is judged in light of time, place, circumstances.

Whether the conduct offends against a reasonable and recognised standard of decency which ordinary and reasonable members of the community ought to impose and observe in this day and age.

54
Q

What does CALM TEA stand for?

A
  • 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 to just vent their feelings.
  • Establish whether they require Medical attention.
  • Treat them courteously.
  • Explain the process you are following an why you need to follow that process and ask certain questions.
  • Advise them of the local counselling services available.
55
Q

Discuss whether two 15 year olds having consensual sex have committed an offence or not.

A

Yes they both commit an offence under 134 of sexual conduct with a young person under 16.

However if one party was 16, and the other was 15, only the 16 year old commits the offence.

56
Q

Discuss consent with regards to indecent assault

A

Consent is a defence to indecent assault involving an adult complainant. As with sexual violation the absence of consent is a subjective test from the complainants point of view.

Belief in consent - with indecent assault an honest belief alone is sufficient, even if not reasonable (unlike sexual violation where the belief has to be reasonable)

57
Q

What is the definition of genitalia and what is the relevant case law?

A

The genitalia or genitals (organs of generation) include the penis and testicles of a male, and the vulva and vagina of a female. It’s also includes surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female, or of indeterminate sex)

58
Q

For the purposes of the Evidence Act, a child is what age?

A

A person under 18 years

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