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JHLS00 DDP > Sexual Offences CIB 007 > Flashcards

Sexual Offences CIB 007 Flashcards

1
Q

Define Rape

A

Is a specific form of sexual violation that involves the non-consensual penetration of the complainant’s genitalia by the offender’s penis.

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2
Q

Define Unlawful Sexual Connection

A

(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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3
Q

What must be proved for a sexual violation by the Crown?

A

In all cases of sexual violation the Crown must prove beyond reasonable doubt that:

1) there was an intentional act by the offender involving sexual connection with the complainant, AND

2) the complainant did not consent to the sexual act, AND

3) the offender did not believe the complainant was consenting, OR

4) if the offender did believe the complainant was consenting, the grounds for such a belief were not reasonable.

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4
Q

What must any investigation prove in sexual violation?

A

Either:

1) the defendant knew they did not have the victim’s consent but acted anyway (the offender’s mens rea), OR

2) the defendant’s grounds for believing that the victim consented to the act were unreasonable.

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5
Q

Define Sexual Violation, S128 CA1961.

A

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

(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.

(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 in reasonable grounds that person B consents to the connection

(4) 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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6
Q

Define Sexual Connection S2 CA1961 (Interpretation)

A

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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7
Q

Define ‘slightest degree of penetration is sufficient’ S2 CA1961 (interpretation)

A

(1A) introduction to the slightest degree is enough to effect a connection.

  • penetration of the genitalia or anus must be proved, the extent of the penetration is not relevant; any degree of penetration, no matter how slight or fleeting, is sufficient.
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8
Q

Proof of penetration can be established by:

A

1) the complainant’s evidence
2) medical examination, including physical injuries and DNA evidence
3) the defendant’s admissions

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9
Q

Define Genitalia S2 CA1961

A

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

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10
Q

Case Law: R v Koroheke 28/11/01, CA189/01

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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11
Q

Case Law: R v N

A

“Is sufficiently proved by penetration of the vulva by the penis… proof of penetration of the vagina is not required”

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12
Q

Define Penis S2 CA1961 (interpretation)

A

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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13
Q

Penetration of the anus, what charge would be appropriate?

A

Sexual violation by unlawful sexual connection S128(1)(b)

Anus is not included within the definition of genitalia, and therefore non-consensual penile penetration of the anus is not rape.

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14
Q

S127 CA1961 - what is it?

A

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.

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15
Q

What must the Crown prove to show that sexual connection is unlawful?

A

1) Subjective test - the complainant did not consent to the sexual act; AND

2) Subjective test - the offender did not believe the complainant was consenting; OR

3) Objective test - if he did believe she was consenting, the grounds for such a belief were not reasonable.

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16
Q

Define consent

A

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

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17
Q

Case Law: R v Cox 7/11/96, CA213/96. What was held?

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

Case Law: R v Gutuama 13/12/01, CA275/01. What was held?

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

What is Section 128A, CA1961?

A

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

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20
Q

Section 128A, CA 1961 - Allowing sexual activity does not amount to consent in some circumstances. What are they?

A

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 an act of sexual activity with another person if he or she allows the sexual activity because he or she is mistake 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.

9) For the purpose of this section, -
allows includes acquiesces in, submits to, participates in, and undertakes sexual activity, in relation to a person, means -
(a) sexual connection with the person; or
(b) the doing on the person of an indecent act that, without the person’s consent, would be an indecent assault of the person.

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21
Q

Section 129, CA 1961. What is the penalty?

A

Term of imprisonment: 10 years

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22
Q

How is someone guilty of an attempt to commit an offence?

A

1) intent to commit the offence, AND
2) take a real and substantial step towards achieving that aim.

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23
Q

Section 129(1), CA 1961. What is it?

A

Attempts to commit sexual violation.

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24
Q

Define intent?

A

1) An intention to commit the act
2) An intention to get a specific result

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25
Q

What is a deliberate act?

A

“Intent” means that act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.

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26
Q

Who proves intent?

A

The prosecution must prove the offender’s intent beyond reasonable doubt.

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27
Q

How is an offender’s intent inferred?

A

1) the offender’s actions and words before, during and after the event

2) the surrounding circumstances

3) the nature of the act itself

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28
Q

What must the Crown prove of the defendant’s conduct?

A

1) intended to have sexual connection with the complainant, AND

2) the complainant did not consent to the intended sexual connection; AND

3) the defendant did not believe on reasonable groups that the complainant was consenting

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29
Q

Case Law: What was held in R v Harper (2010)

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.

30
Q

Section 129(2), CA1961, what is it?

A

Assault with intent to commit sexual violation.

31
Q

Define assault as per Section 2, CA 1961

A

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.

32
Q

When might you file the charge of assault with intent to commit sexual violation?

A

1) Where an offender assaults the complainant because they are intent on having intercourse with the complainant and obtaining the complainant’s consents for that; OR

2) As an alternative to a charge of attempted sexual violation (particularly where te proximity between the assault and the completion of the intended sexual violation is an issue)

33
Q

Discuss the penalty provisions for sexual violation as set out in s128B of the Crimes Act 1961.

A

This section outlines that the punishment for 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. These are:

(A) the particular circumstances of the person convicted; AND
(B) the particular circumstances of the offence, including the nature of the conduct constituting it.

34
Q

In negating consent, the Crown has to prove one of three things. List the three things:

A

1) the victim did not consent, OR
2) the victim’s consent was not valid, OR
3) the defendant did not believe on reasonable grounds that the victim was consenting.

35
Q

What are the two elements to be proved in the charge of assault with intent to commit sexual violation?

A

That the offender:

1) assaulted the victim, AND
2) intended to commit sexual violation

36
Q

What is section 132, CA 1961?

A

Sexual conduct with a child under 12

37
Q

What is section 134, CA1961?

A

Sexual conduct with a young person under 16

38
Q

Define the legal age of a child.

A

Means a person under the age of 12.

39
Q

Section 132 (1), CA 1961. What is it?

A

Every one who has sexual connection with a child is liable to imprisonment for a term not exceeding 14 years.

40
Q

Section 132 (2), CA 1961. What is it?

A

Every one who attempts to have sexual connection with a child is liable to imprisonment for a term not exceeding 10 years.

41
Q

Section 132 (3), CA 1961. What is it?

A

Every one who does an indecent act on a child is liable to imprisonment for a term not exceeding 10 years.

42
Q

Section 132(4), CA 1961. What is it?

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.

43
Q

Section 132(5), CA 1961. What is it?

A

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

44
Q

Section 132(6), CA1961. What is it?

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

45
Q

What must be produced as proof of age in sections 132 & 134?

A

The Crown must prove the complainant’s age at the time of the alleged offence.

  • complainant’s birth certificate; AND
  • independent evidence that identified the complainant as the person named in the certificate.
46
Q

Case Law: R v Forrest and Forrest (1970). What was held?

A

The best evidence possible in the circumstances should be adduced by the prosecution in proof of age.

47
Q

Define ‘indecency’

A

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

48
Q

Case Law: R v Court, what was held?

A

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

49
Q

What is section 134(1) CA1961?

A

Every one who has sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.

50
Q

What is section 134(2), CA 1961.

A

Every one who attempts to have sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.

51
Q

What is section 134(3), CA 1961?

A

Every one who does an indecent act on a young person is liable to imprisonment for a term not exceeding 7 years.

52
Q

What is section 134(4) of CA 1961?

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.

53
Q

What is section 134(5) of CA1961?

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.

54
Q

What is section 134(6) of CA 1961?

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 assault the young person.

55
Q

What is the definition of a young person?

A

Under the age of 16 years.

56
Q

What is section 134A of CA 1961?

A

Defence to charge under section 134.

57
Q

Define section 134A, CA1961.

A

1) 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.

2) except to the extent provided in subsection (1), -
(A) it is not a defence to a charge under section 134 that the young person concerned consented; and
(B) it is not a defence to a charge under section 134 that the person charged believed that the young person concerned was of or over the age of 16 years.

58
Q

What is section 135, CA1961?

A

Indecent assault

59
Q

What penalty does indecent assault carry?

A

7 years imprisonment

60
Q

Case Law: R v Leeson 1968. What was held?

A

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

61
Q

What must the prosecution prove in an indecent assault?

A

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.

62
Q

Is consent a defence to indecent assault under section 132 and 134?

A

No

63
Q

Who’s authority is needed to charge under S144A? (Sexual conduct with children or young person outside of NZ)

A

Attorney General

64
Q

If a person has sex with their 18 year old home stay student, and she only gives consent because he said she can use the car for the time she is here, what offence has been committed?

A

No offence - she hasn’t been coerced, she is over 18 and gave consent

65
Q

When is a previous committed statement admissible in evidence?

A

As rebuttal evidence

66
Q

When is the offence grooming complete? (S131B)

A

After the grooming, either meeting, travelling with intent to meet or arranging or persuading young person to travel with intent to meet

67
Q

Guy has consensual sex with 11 year old girl, he genuinely believed she was over 16. Does he have a defence to the charge of sexual connection with a child?

A

No - not a defence that the child consented S132(5)

68
Q

When is sexual connection incest?

A

With a parent/sibling/half sibling/grandparent and the person charged knew of that relationship.

69
Q

When is sexual connection incest?

A

With a parent/sibling/half sibling/grandparent and the person charged knew of that relationship.

70
Q

What is the objective test for indecency?

A

Crown must prove
The offender intentionally assaulted the complainant

The circumstances accompanying the assault were indecent
The offender intended the conduct a reasonable person would find indecent

71
Q

What are three ways penetration is proved?

A

1) complainants evidence
2) medical examination
3) defendant’s admissions

72
Q

S44, Evidence Act - when can such questions be asked?

A

When the judge deems exclusion would be contrary to interests of justice.

JHLS00 DDP (3 decks)

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