SEXUAL OFFENCES - Definitions

Question 1

Sexual violation defined

Answer 1

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.

Question 2

RAPE DEFINED

Answer 2

s128(2) – RAPE DEFINED

1. 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,—
   
   1. without person B’s consent to the connection; and
   2. without believing on reasonable grounds that person B consents to the connection.

Question 3

Genitalia

Answer 3

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)

Question 4

Penis

Answer 4

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).

Question 5

Consent

Answer 5

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’.

Question 6

Non consent under certain circumstances

Answer 6

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

Question 7

Reasonable Grounds (3 step process)

Answer 7

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.”

Question 8

PROOF OF AGE

Answer 8

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.

Question 9

Unlawful Sexual Connection

Answer 9

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.

Question 10

Introduction / Penetration

Answer 10

Penetration

Section 2(1A), Crimes Act 1961

introduction to the slightest degree is enough to effect a connection.

Question 11

Definition of a young person

Answer 11

s134(6), CA 61

Young person means a person under the age of 16 years

Question 12

Definition of Child

Answer 12

s132(6), CA 61

Child means a person under the age of 12 years

Question 13

Indecent act

Answer 13

Indecent act

An act accompanied by circumstances of indecency.

Question 14

Indecent assault

Answer 14

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 …”

Question 15

Definition of sexual connection?

Answer 15

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)

Question 16

Define section 131 Crimes Act 1961

Answer 16

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.

Question 17

What is the definition of Dependant family member

(1)(a)

Answer 17

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);

Question 18

What is the definition of a dependant family member

(1)(b)

Answer 18

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

Question 19

What is the definition of a dependant family member

(1)(c)

Answer 19

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.

Question 20

Define Section 130 Crimes Act 1961

Answer 20

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

Question 21

Proof of penetration can be defined by what other evidence?

Answer 21

Proof may be provided by:

• The complainants evidence
• medical examinations
• accuseds admissions

Question 22

What is the definition of Immaterial matters

Answer 22

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