Sexual Offences CIB007

Question 1

What is section 128B CA 1961?

Answer 1

(1) Everyone who commits sexual violation = 20 years.
(2) They must be sentenced to imprisonment unless, having regard to the matters stated in (3), the court thinks that the person should not be sentenced to imprisonment.
(3) The matters are:
(a) Circumstances of the person convicted; and
(b) Circumstances of the offence, including the nature of the conduct constituting it

Question 2

What is section 128(1)(a) CA 1961?

Answer 2

SEXUAL VIOLATION BY RAPE:

Sexual violation is the act of a person who rapes another person.

Question 3

What is section 128(1)(b) CA 1961?

Answer 3

SEXUAL VIOLATION BY UL SEXUAL CONNECTION:

Sexual violation is the act of a person who has unlawful sexual connection with another person.

Question 4

What is section 128(2) CA 1961?

Answer 4

DEFINES RAPE:

(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.

Question 5

What is section 128(3) CA 1961?

Answer 5

DEFINES UL SEXUAL 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 on reasonable grounds that person B consents to the connection.

Question 6

What is section 128(4) CA 1961?

Answer 6

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

Question 7

Define sexual connection and name the section which relates?

Answer 7

Section 2 CA 1961 - Interpretation:
Sexual connection means—
(a) connection effected by the introduction into the genitalia or anus of one person 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)

Question 8

Define ‘genitalia’ and name the case law which relates?

Answer 8

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). It literally means the organs of generation.

R v Koroheke: 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.

Question 9

What is section 127 CA 1961?

Answer 9

Section 127 - 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.

Question 10

What three tests must the Crown prove in relation to unlawful sexual connection?

Answer 10

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

Question 11

What was held in R v Cox?

Answer 11

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

Question 12

What was held in R v Gutuama?

Answer 12

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.

Question 13

When is consent relevant? (CL)

Answer 13

In R v Adams, the material time when consent, and the belief in consent, is to be considered is at the time the act actually took place.

Question 14

What is section 128A CA 1961? Explain at least 6 out of the 9 subsections.

Answer 14

128A - Allowing sexual activity does not amount to consent in some circumstances:
(1) He or she does not protest or offer physical resistance to the activity.
(2) 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) Asleep or unconscious.
(4) Affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
(5) Affected by an intellectual, mental, or physical condition or impairment
(6) Mistaken about who the other person is.
(7) 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 purposes 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.

Question 15

What was held in R v Koroheke re 128A and force, threat, or fear of force?

Answer 15

It is important to distinguish between consent that is freely given and the 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.

Question 16

Where the validity of a person’s consent is in question due to impairment, what must be established?

Answer 16

The impairment was sufficiently severe so as to deprive the complainant of the capacity to give or withhold consent.

Question 17

List 3 different forms of non-consensual sexual connection.

Answer 17

1. Penetration of a person’s genitalia or anus by a part of another persons body (eg. finger in vagina or penis in anus)
2. Penetration of a person’s genitalia or anus by an object held or manipulated by another person (eg. vibrator or other hand held items)
3. Touching of a person’s genitalia or anus by another person’s mouth or tongue (eg.oral sex)

Question 18

What is section 129 CA 1961?

Answer 18

129 - Attempted sexual violation and assault with intent to commit sexual violation:

(1) Every one who attempts to commit sexual violation is liable to imprisonment for a term not exceeding 10 years.
(2) 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.

Question 19

What is section 72 CA 1961?

Answer 19

72 - Attempts

(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

Question 20

Name the two types of intention

Answer 20

1. Deliberate Act

2. Intent to produce a result

Question 21

What was held in R v Harpur in relation to ‘attempts’?

Answer 21

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”.

Question 22

What was held in R v Harpur in relation to ‘sufficient proximity’?

Answer 22

The conduct is 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.

Question 23

Define assault and name its section

Answer 23

Section 2: The act of intentionally applying or attempting to apply force to a person directly or indirectly or threatening by any act or gesture to apply such force

Question 24

Name the two different intentions an offender may assault a victim in relation to ‘attempts’

Answer 24

1. In hope that the complainant will change their mind and consent to the act
2. Intending to commit rape or sexual connection regardless of whether the complainant changes their mind

Question 25

List the mens rea element that must be proved at the time the defendant assaulted the victim

Answer 25

1. Intention to have sexual connection with the complainant AND
2. the complainant did not consent to the sexual connection ANS
3. the defendant did not believe on reasonable grounds that the complainant was consenting

Question 26

What is Section 132 CA1969 (including subsections)?

Answer 26

132 Sexual conduct with child under 12

(1) Every one who HAS SEXUAL CONNECTION with a child = 14 years.
(2) Every one who ATTEMPTS to have SEXUAL CONNECTION with a child = 10 years.
(3) DOES an INDECENT ACT on a child = 10 years.
(4) It is not a defence if they believed the child was of or over the age of 12 years.
(5) It is not a defence that the child consented.
(6) In this section:
(a) child = under the age of 12 years; and
(b) doing an indecent act on a child includes indecently assaulting the child

Question 27

What was held in R v Cox in relation to ‘consent of a child’?

Answer 27

We do not exclude the possibility that a child may be able to give a full, voluntary, free, and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare.

Question 28

What was held in R v Cox in relation to ‘reasonable belief in consent of child’?

Answer 28

In exceptional and rare circumstances 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 has the experience or maturity to understand the nature and significance of the act

Question 29

What was held in R v Forrest and Forrest?

Answer 29

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

Question 30

Define indecent act

Answer 30

One person does an indecent act on another person whether he/she

(a) does an indecent act WITH or ON the other person
(b) induces/permits the other person to DO an indecent act WITH or ON him/her

Question 31

What was held in R v Court?

Answer 31

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

Question 32

What is Section 134 CA1961 (including subsections)?

Answer 32

134 Sexual conduct with young person under 16

(1) HAS SEXUAL CONNECTION with a young person = 10 years.
(2) ATTEMPTS to have SEXUAL CONNECTION with a young person = 10 years.
(3) DOES an INDECENT ACT = 7 years.
(4) No person can be convicted of a charge under this section if he or she was MARRIED to the YP
(5) The victim cannot be charged as a party to the offence if the offender was of or over the age of 16 years when the offence was committed.
(6) In this section:
(a) YP = under the age of 16 years; and
(b) doing an indecent act on a young person includes indecently assaulting the young person.

Question 33

What is Section 134A (including subsections) CA1961?

Answer 33

134A Defence to charge under section 134

(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 B on RG that the YP was of or over the age of 16 years; and
(c) the YP n consented.
(2) Except to the extent provided in subsection (1):
(a) it is not a defence that the YP concerned CONSENTED; and
(b) it is not a defence that the person charged BELIEVED that the YP was of or over the age of 16 years.

Question 34

What is Section 135 of CA1961?

Answer 34

Everyone is liable to imprisonment for 7 yrs who indecently assaults another person

Question 35

What was held in R v Leeson?

Answer 35

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

Question 36

What must the prosecutor prove in relation to indecent assault? (3)

Answer 36

1. The defendant intentionally assaulted the complainant
2. The circumstances accompanying the assault were indecent
3. The defendant did not honestly believe the complainant was consenting

Question 37

In relation to indecent assault, if the issue of consent is raised on the evidence, what must the prosecution prove?

Answer 37

1. The complainant did not consent to the assault

2. The defendant did not honestly believe the complainant was consenting

Question 38

What is S129A CA1961?

Answer 38

(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 = 14 years.
(2) Every one who does an INDECENT ACT on another person KNOWING that the other person has been induced to consent by threat = 5 years.
(3) Subsection (1) KNOWS a threat or implied threat made in (5)
(4) For the purposes of subsection (2),—
(a) Subsection (2) KNOWS a threat or implied threat made in (5); and
(b) a person is induced to consent to an indecent act whether—
(i) induced to consent to the DOING of an indecent act WITH or ON him or her; or
(ii) induced to consent to DO an indecent act himself or herself.
(5) The kinds of threat referred to in subsections (3) and (4)(a) are:
(a) someone will commit an offence that—
(i) is punishable by imprisonment; but
(ii) does not involve the actual or threatened application of force to any person; and
(b) someone will l make an accusation or disclosure something that will damage the reputation of the person; and
(c) making improper use of a power or authority arising out of—
(i) an occupational or vocational position or
(ii) a commercial relationship

Question 39

What is Section 130 of the CA1961?

Answer 39

Incest

(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.

Question 40

Incest, Section 130 CA1961 - both parties must be consenting. True or false.

Answer 40

True. If both parties aren’t consenting, then a charge of sexual violation is appropriate.

Question 41

What is Section 131 CA1961?

Answer 41

131 Sexual conduct with dependent family member

(1) 7 years = SEXUAL CONNECTION with a dependent family member under the age of 18 years.
(2) 7 years = who ATTEMPTS to have sexual connection with a dependent family member under the age of 18 years.
(3) 3 years = INDECENT ACT on a dependent family member under the age of 18 years.
(4) The dependent family member cannot be charged as a party to the offence.
(5) It is not a defence to a charge under this section that the dependent family member consented.

Question 42

What is Section 131A CA1961?

Answer 42

131A Dependent family member defined
(1) For the purposes of section 131, one person is a dependent family member of another person—
(a) 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.
(2) In subsection (1),— aunt, in relation to a person, includes a half-sister of one of the person’s parents
foster parent includes a former foster parent
guardian—
(a) means guardian by virtue of the Guardianship Act 1968 or the Oranga Tamariki Act 1989; and
(b) includes a former guardian step-parent includes a former step-parent, uncle, in relation to a person, includes a half-brother of one of the person’s parents.

Question 43

What is Section 131B CA1961?

Answer 43

131B 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:
(ii) travels with the intention of meeting:
(iii) arranges for or persuades the young person to travel with the intention of meeting; and
(b) dw
(1A) Can include a reference to a constable who pretends to be a young person if the offender, when taking any of the actions described in subsection (1), believed that the person was under the age of 16 years.
(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.

Question 44

When is S131B complete?

Answer 44

When the parties meet, the defendant travels, or makes arrangements to meet the complainant.

Question 45

What is S138 CA1961?

Answer 45

138 Sexual exploitation of person with significant impairment

(1) 10 years who HAS exploitative sexual connection with a person with a significant impairment.
(2) 10 years who ATTEMPTS to have exploitative sexual connection with a person with a significant impairment.
(3) For (1) and (2), a person has exploitative sexual connection with a person with the impaired person if he or she—
(a) 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) 5 years = who exploitatively DOES an INDECENT ACT on a person with a significant impairment.
(5) Same as 3.
(6) Significant impairment = an intellectual, mental, or physical condition 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.

Question 46

What is Section 143 CA1961?

Answer 46

143 Bestiality

(1) 7 years = commits bestiality.
(2) This offence is complete upon penetration.

Question 47

What is Section 144A & 144B CA1961?

Answer 47

144A = Sexual conduct with children and young people outside NZ
144B = Consent of Attorney-General required

Question 48

What is Section 44 of the Evidence Act 2006?

Answer 48

It covers evidence of sexual experience of complainants in sexual cases.
- No evidence or questions can be put to the complainant about their sexual experience with any other person other than the defendant (unless approved by the judge)

Question 49

What is Section 87 of the Evidence Act 2006?

Answer 49

It protects the witness from having to state their home address.

Question 50

What is Section 88 of the Evidence Act 2006?

Answer 50

It protects the complainant having questions put to them (or the witness) about their occupation.

Question 51

What is Section 121 of the Evidence Act 2006?

Answer 51

In any criminal proceeding, the complainants evidence does not have to be corroborated.

Question 52

What does Section 35 of the Evidence Act 2006 relate to?

Answer 52

“Previous consistent statements rule”.

Question 53

What are the 4 advantages of visually recording evidence?

Answer 53

1. greater quality and quantity of information obtained
2. minimising trauma to the witness by simplifying the process and having their interview played as their evidence in chief
3. reducing contamination by the interviewer through the process of transposing the interview into a statement
4. its a good way for the witness to refresh their memory

Question 54

By presenting a Child’s video interview in Court, what are the 4 ways it meets the child’s needs?

Answer 54

1. the interview process is focused on the child and allows them to state clearly and freely what (if anything) has happened
2. the video can be used for the basis of an investigation, subsequent criminal prosecution, and/or care and protection purposes
3. it avoids the need to reinterview the child

Question 55

What is Section 195 CA1961?

Answer 55

Ill-treatment or neglect of child or vulnerable adult.

Question 56

What is Section 195A CA1961?

Answer 56

Failure to protect child or vulnerable adult.

Question 57

Define a ‘victim’. Include the section. List 4 types.

Answer 57

Section 4 CA1961.

1. A person whom an offence is committed against
2. A person who suffers physical injury, or loss/damage to property (from the offence)
3. a parent or legal guardian of a child or YP - does not include offender
4. A member of the immediate family of the victim who died/is incapable as a result of the offence

Question 58

When interacting with a victim of sexual offences, what are 7 ways to provide a safe and secure environment?

Answer 58

1. conduct your dealing in a sensitive matter
2. accept they are telling the truth
3. listen to what they have to say
4. establish if they require medical attention
5. treat them courteously
6. explain the process
7. advise them of local counselling

Question 59

List the 12 key process points in the ASA Policy and Procedure

Answer 59

1. IA on contact
2. Case referral
3. Providing specialist support
4. prelim interview
5. Information feedback
6. Medical examination
7. Formal interview
8. Investigation and Evidence
9. Resolution options
10. Prosecution
11. Final actions and record keeping
12. Preventative opportunities and responsibilities

Question 60

In relation to S195A - Failure to protect child or vulnerable adult. Criminal liability will arise if a person has frequent contact with a child (or vulnerable adult) and what else? (2 points).

Answer 60

1 knows (mens rea) the victim is at risk of death, GBH, or sexual assault as a result of the acts or omissions of another person; and
2. Fails (actus reus) to take reasonable steps to protect the victim from that risk

Question 61

At what age may a person not be charge for “failure to protect child or vulnerable adult” (195A)?

Answer 61

Under the age of 18 at the time of the act or omission.

Question 62

Explain what is meant under ‘liability of extended family’ when taking about the charge of “failure to protect child or vulnerable adult”?

Answer 62

A person may be regarded as a member of a household even if they do not live in the same household but are so closely connected right he household it’s reasonable in the circumstances to regard them as a member of the household.

Question 63

Under S128A, what are the three examples a person does not consent to sexual activity if he or she allows the activity?

Answer 63

A) force applied to him or her or some other person
B) the threat (express or implied) of force to him or her or some other person
C) the fear of the application of force to him or her or some other person

Question 64

Explain the objective test for indecency.

Answer 64

Indecency must be judged in light of the time, place and circumstances. It must be something more than trifling and be sufficient to wast any the sanction of the law.

Question 65

What is the maximum term of imprisonments for indecent assault?

Answer 65

7 years.

Question 66

What is the maximum term of imprisonments for “sexual conduct with a DFM” (1) everyone who has sexual connection?

Answer 66

7 years

Question 67

How old must you be to be charged with SC with a DFM?

Answer 67

18 years old

Question 68

Under S131B, after meeting or communicating with the person under 16, what are the 3 actions outlined under 1(a)?

Answer 68

I) internationally meets the YP or

ii) travels with the intention of meeting the YP or
iii) arranges for or persuades the YP to travel with the intention of meeting him or her

Question 69

In relation to S131B (SC with a DFM), when in the offence complete?

Answer 69

When the parties meet, or the defendant travels or makes arrangements to meet the complainant with the relevant intent. To be intentional the meeting need only be “purposely arranged”.

Question 70

In relation to S138 (sexual exploitation of person with significant impairment), for the purposes of (1) and (2) a person has exploitative sexual connection with a person with significant impaired if he or she -

Answer 70

(a) 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.

Question 71

Under S44 of the evidence act 2006, (evidence of sexual experience of complainants in sexual cases), what is held in subsection (1)?

Answer 71

No question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the judge.

Question 72

Under S44 of the evidence act 2006, (evidence of sexual experience of complainants in sexual cases), what is held in subsection (3)?

Answer 72

In an application for permission under subsection (1), the judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to the facts in issue in the proceeding, or the issues of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.

Question 73

In relation to section 121 of the evidence act 2006 (corroboration), what will previous consistent statements be?

Answer 73

Previous consistent statements will really only be admissible is rebuttal evidence.

Question 74

Who is responsible for transcribing DVDs?

Answer 74

The officer in charge.

Question 75

What must you remind the victim not to do prior to a medical examination?

Answer 75

No eating or drinking
No going to the toilet (if necessary, use a toxicology kit to catch urine and ask the victim not to wipe)
No washing or showering
No washing of hands or biting fingernails

Question 76

There are three areas to consider in determining whether physical abuse is serious and therefore meets a threshold for a referral as a CPP case, what are those three areas?

Answer 76

The action of the abuse
The injury inflicted
The circumstances (factors of the case).

Question 77

What are the three complaint types when talking about ‘adult sexual assault’?

Answer 77

Acute (within 7 days), Non-acute (more than 7 days but less than 6 months), and Historic (after 6 months)

Question 78

Doing a prelim interview is necessary for investigators to gain a better understanding of what has occurred to determine: (3 points)

Answer 78

1. What further investigative actions are necessary
2. Weather in offence may have occurred, and
3. Whether the victim wishes to make a formal complaint

Question 79

Prior to a medical assessment what must be explained to the victim (this is not the “do nots”)?

Answer 79

That the examination will be conducted by a medical forensic practitioner specially trained and examining individuals who have been sexually assaulted.

That the examination has potential health benefits that can Police obtain evidence to apprehend the offender.

The expected duration of the examination (“a couple of hours”) and, if appropriate, possible outcomes of the examination.

Question 80

What are the child youth and family time frame categories?

Answer 80

Critical (an immediate risk of serious harm and the need for immediate protection may be necessary)

Very Urgent (at risk of harm is not in any immediate danger)

Urgent (at risk of harm but protected in the short-term)

Question 81

In relation to child protection policy and procedure; when should a child be removed?

Answer 81

When it is not safe to leave them there or you believe on reasonable grounds that if left they will suffer, or are likely to suffer, ill-treatment, neglect, depravation, abuse or harm, and there is no other practical means of ensuring their safety.