SEXUAL OFFENCES - Definitions Flashcards
Sexual violation defined
s128 - Sexual Violation Defined
(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 on 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.
RAPE DEFINED
s128(2) – RAPE DEFINED
- 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,—
- without person B’s consent to the connection; and
- without believing on reasonable grounds that person B consents to the connection.
Genitalia
s2, CA61 - 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)
Penis
Penis
The male organ of reproduction
Penis - s2, CA61
Includes a surgically constructed or reconstructed organ analogous to naturally occurng penis. (whether the person concerned is male, female or of indeterminate sex).
Consent
Consent
Consent is a person’s conscious and voluntary agreement to do something desired or proposed by another.
R v COX
Consent must be ‘full, voluntary, free and informed…freely and voluntarily given by a person in a position to form a rational judgement’.
Non consent under certain circumstances
s128A, CA 61 - Non consent under certain circumstances
A person does not consent to sexual activity under certain circumstances. Matters that do not constitute consent:
- not protesting or offering physical resistance use of force, threats of force, or fear of force
- asleep or unconscious
- so affected by alcohol / drugs they cannot consent
- so affected by mental or physical impairment they cannot consent
- mistaken ID
- mistaken as to nature and quality of the act
Reasonable Grounds (3 step process)
Reasonable Grounds (3 step process):
Subjective test – Absence of consent
- What was the complainant thinking at the time
- Was she consenting?
Subjective test – Belief in consent
- If she wasn’t consenting, did the offender believe she was consenting?
- What was the offender thinking at the time.
Objective test – R/Grounds for belief in consent
- If the offender believed the complainant was consenting, was that belief reasonable?
- I.E. what would a reasonable person have believed if placed in the same position as the defendant?
R v GUTUAMA
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.”
PROOF OF AGE
PROOF OF AGE
- Involves producing the victim’s birth certificate
- Along with with independent evidence that identifies the victim as the person named in the certificate.
R v FORREST AND FORREST
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.
Unlawful Sexual Connection
s128(3) CA61 – Unlawful 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.
Introduction / Penetration
Penetration
Section 2(1A), Crimes Act 1961
introduction to the slightest degree is enough to effect a connection.
Definition of a young person
s134(6), CA 61
Young person means a person under the age of 16 years
Definition of Child
s132(6), CA 61
Child means a person under the age of 12 years
Indecent act
Indecent act
An act accompanied by circumstances of indecency.
Indecent assault
s135, CA61 - Indecent assault
Every one is liable to imprisonment for a term not exceeding 7 years who indecently assaults another person.
R v Leeson
“The definition of ’indecent assault’ … is an assault accompanied with circumstances of indecency …”
Definition of sexual connection?
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)
Define section 131 Crimes Act 1961
131 - Sexual conduct with dependent family member
(1) Every one is liable to imprisonment for a term not exceeding 7 years who has sexual connection with a dependent family member under the age of 18 years.
(2) Every one is liable to imprisonment for a term not exceeding 7 years who attempts to have sexual connection with a dependent family member under the age of 18 years.
(3) Every one is liable to imprisonment for a term not exceeding 3 years who does an indecent act on a dependent family member under the age of 18 years.
What is the definition of Dependant family member
(1)(a)
131A (1)(a) - Dependent family member defined
(1) one person is a dependent family member of another person—
(a) if the other person has 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);
What is the definition of a dependant family member
(1)(b)
s131A(1)(b) - Dependent family member defined
(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
What is the definition of a dependant family member
(1)(c)
131ADependent family member defined
(1) For the purposes of section 131, one person is a dependent family member of another person—
(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.
Define Section 130 Crimes Act 1961
Incest - s130 CA 1961 - 10 Years
(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; and
(2) must be over the age of 16 years of age
Proof of penetration can be defined by what other evidence?
Proof may be provided by:
- The complainants evidence
- medical examinations
- accuseds admissions
What is the definition of Immaterial matters
If such an act has been done with the consent of the child/Young person it is immaterial if:
- The offender does the act on the child
- The child does the act on the offender
- the act is mutal
