Sexual Offences - general

Question 1

list the 2 main forms of sexual violation

Answer 1

• rape

- unlawful sexual connection

Question 2

discuss the penalty provisions for sexual violation as set out in s128B of the crimes act 1961

Answer 2

• s128B 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

Question 3

define genitalia

Answer 3

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

Question 4

in negating consent the Crown has to prove one of three things, what are the three things

Answer 4

In proving consent was not present in a sexual violation the crown must prove that:

1. the victim did not consent
2. the victims consent was not valid
3. the accused did not believe on reasonable grounds that the victim was consenting

Question 5

discuss the 2 elements that need to be proved in a charge of assault with intent to commit sexual violation, section 129 of crimes act 1961

Answer 5

the 2 elements that need to be proved in an attempt to commit sexual violation are that the offender

• assaulted the victim
• intended to commit sexual violation

Question 6

define consent

Answer 6

consent is a conscious and voluntary agreement to something desired or proposed by someone else

Question 7

define sexual connection

Answer 7

(a) a connection effected by the introduction into the genitalia or anus of a person otherwise than for genuine medical purposes
- a part of the body of another person
- an object held or manipulated by another person

(b) a connection between the mouth or tongue of one person and a part of another persons genitalia or anus
(c) the continuation of connection of a kind described in paragraphs (a) or (b)

Question 8

discuss the statutory defence s134A - sexual conduct with a young person under 16 years

Answer 8

the statutory defence under s134A applies when

• the person charged can show they took reasonable steps to establish the young person was aged 16 or over, and
• the person charged believed on reasonable grounds that the young person was aged 16 or over, and
• the young person consented to that connection

Question 9

define sexual conduct with a child under 12

Answer 9

sexual conduct with a child under 12 is

• sexual connection with a child
• attempted sexual connection with a child, and
• does an indecent act on a child

Question 10

discuss whether a 16 year old girl can be charged with having consensual sex with a 14 year old boy

Answer 10

yes the girl can be charged as it is the offence of sexual conduct with a young person under 16 years (s134 of crimes act 1961)

Question 11

define indecent act

Answer 11

an indecent act is generally accepted as an act accompanied by circumstances of indecency

indecent acts are usually consensual acts, in age specific sexual offences doing an indecent act with a child or young person can also include indecently assaulting that child or young person

Question 12

list 3 grounds on which a direction can be made under s103(3) of the Evidence Act 2006 in regards to a witness giving evidence in an alternative way

Answer 12

s103(3) of evidence act 2006

a direction can be made under s103(3) for a witness to give evidence in an alternative way, may be made on the grounds of

a) age or maturity of the witness
b) physical, intellectual, psychological or psychiatric impairment of the witness
c) trauma suffered by witness
d) witnesses fear of intimidation
e) the linguistic, cultural or religious background of the witness
f) nature of the proceeding
g) nature of the evidence required to be given
h) relationship of the witness to any party to the proceeding
i) the absence or likely absence of the witness from NZ
j) any ground likely to promote the purpose of the Act

Question 13

discuss the requirement under regulation 28 of the Evidence Regulations 2007

Answer 13

Prosecutor is to give a transcript to Defence before preliminary hearing or defended summary hearing

1) prosecutor must ensure a typed transcript of a working copy is given to the defendant or defendants lawyer
a) if there is to be a preliminary hearing, at least 7 days before the date on which a video record is given in evidence at a preliminary hearing
b) if the defendant is to be tried summarily, as soon as is reasonably practicable after the defendant has pleaded not guilty

2) the typed transcript is to be prepared by the police
3) the Court may adjourn the hearing to allow further time for the defendant to consider the transcript if satisfied that sub clause (1) has not been complied with

Question 14

list 3 ways under s105 that a witness may give evidence

Answer 14

1) while in the courtroom but unable to see the defendant or some other specified person
2) from an appropriate place outside the courtroom, either in NZ or elsewhere (CCTV) or
3) by video recording made before the hearing of the proceeding

Question 15

it is important to preserve trace evidence in sexual assault cases. List 4 things that victims should refrain from (where possible) before a medical examination

Answer 15

1) no eating or drinking
2) no going to the toilet (if necessary use toxicology kit to capture urine and ask female victim not to wipe)
3) no washing or showering
4) no washing hands or biting fingernails

Question 16

list the points that you would cover with a victim to explain the medical forensic examination procedure

Answer 16

explain to the victim

• the examination will be conducted by a medical forensic practitioner specially trained in examining victims of sexual assault
• the benefits of a full medical forensic examination include
  i) potential benefits to their physical, sexual and mental health
  ii) the examination can help police obtain evidence to apprehend their offender
• the expected time for the examination and if appropriate, possible outcomes of the examination
• ask the victim if they have any concerns about the gender of the practitioner conducting the examination and advise that you will do your best to accommodate their wishes

Question 17

when interacting with victims of sexual offences what actions should you take to provide a safe and secure environment in which they may regain some control of their lives

Answer 17

• conduct dealings in a sensitive and concerned manner
• accept they are telling the truth until 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 just to vent their feelings
• establish whether they require medical attention
• treat them courteously
• explain the process you are following and why you need to follow that process and ask certain questions
• advise them of the local counselling services available

Question 18

list the three areas to consider when determining seriousness of physical abuse

Answer 18

the three areas to consider if physical abuse is serious and meets the threshold for referral as a CPP case are:

• the action of the abuse
• the injury inflicted and
• the circumstances (factors of the case)

Question 19

list four police responsibilities to victims and their rights

Answer 19

Victim rights:

• all obligations under the victims rights act 2002 must be met and all victim contact must be recorded
• victims must be given information about the progress of their investigation within 21 days
• victims must be kept updated and informed of the outcome of the investigation including no further avenues of enquiry or the reason for charges not being laid
• As soon as the offender is arrested and charged police must determine whether it is a s29 offence. If so the victim must be informed of their right to register on the victim notification system (if wishes to do so)
• Victims must be informed of the outcome of the case and the case closure. Ensure any property belonging to the victim is returned promptly

Question 20

define serious child abuse and circumstances where police would remove a child from a household

Answer 20

serious child abuse includes but is not limited to:

• sexual abuse
• serious physical abuse
• serious wilful neglect
• serious family violence where the child is a witness
• all allegations against child, youth and family approved caregivers that involve serious child abuse
• all allegations against employees of child, youth and family and the police that involve serious child abuse

Question 21

in relation to child abuse investigations, define what the term “child centred time frames” mean

Answer 21

timeframes relevant to the childs age and cognitive development. The younger the child the more vulnerable they are and therefore they require a quicker response. As an example, for a 5 year old, a week is a very long time for an event to be recounted with reliability. However a 16 year old would have less difficulty recalling the same event several weeks later

Question 22

explain section 44 of the evidence act 2006

Answer 22

generally no evidence or questions (except with the judges permission) can be put to the complainant about their sexual experience with any person other than the defendant

however s44(1) is subject to the propensity rule in s40(3). evidence of the victims propensity to act in a certain way with the defendant, including sexually may be offered as evidence but only if the judge grants permission

Question 23

what 3 things must the crown prove in relation to an indecent assault

Answer 23

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

Question 24

when is the offence of sexual exploitation of a person with a significant impairment complete

Answer 24

for the purpose of subsections (1) and (2) a person has exploitative sexual connection with a person with a significant impairment if he or she

(a) has sexual connection with the impaired person 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 25

when is the offence of sexual grooming complete

Answer 25

the offence is complete when the parties meet, or the accused travels or makes arrangements to meet the complainant with the relevant intent. to be intentional the meeting need only be purposely arranged. this section is framed in gender neutral terms

Question 26

explain section 195A crimes act 1961 in relation to what is necessary to prove criminal liability for failing to protect a child

Answer 26

s195A of the crimes act 1961 imposes criminal liability in some situations where it is known a child (or vulnerable adult) is at risk of harm but where no action is taken

the offence applies to:

• members of the same household as the victim
• people who are staff members of any hospital, institution or residence where the victim resides

criminal liability will arise if such a person has frequent contact with a child (or vulnerable adult) and:

• knows (mens rea) the victim is at risk of death, grievous bodily harm or sexual assault as a result of the acts or omissions of another person; and
• fails (actus reus) to take reasonable steps to protect the victim from that risk

Question 27

explain section 87 of the evidence act in relation to the victims address

Answer 27

section 87 protects a witness from having to state their address and having questions put to them about that information. this includes not only the name and number of the street but also the name of the town or community the witness lived in.

however these details may be disclosed where the judge determines that they are directly relevant to the facts in issue and that to exclude them would be contrary to the interest of justice.

Question 28

explain section 129A of crimes act 1961 in relation to sexual conduct with consent induced by certain threats

Answer 28

the kinds of threat referred to in subsections (3) and (4)(a) are

(a) a threat that the person making the threat or some other person 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) a threat that the person making the threat or some other person will make an accusation or disclosure (true or false) about misconduct by any person (whether living or dead) that is likely to damage seriously the reputation of the person against or about whom the accusation or disclosure is made; and

(c) a threat that the person making the threat will make improper use, to the detriment of the person consenting, of a power or authority arising out of
- an occupational or vocational position held by the person making the threat, or
- a commercial relationship existing between the person making the threat and the person consenting

Question 29

discuss r v leeson

Answer 29

the definition of an indecent assault is an assault accompanied with circumstances of indecency

Question 30

under section 131A of the crimes act 1961 what is the definition of a dependent family member

Answer 30

for the purposes of section 131, 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
ii) a parent, step parent, or foster parent of a person described in (i)
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 (ii) or (iii) or

(b) if they are members of the same family, whanau or other culturally recognised group and the other person
i) is not a person referred to in (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 persons family and the other person is not a person referred to in (a) but has
i) is not a person referred to in (a) but
ii) has a responsibility for or significant role in his or her care or upbringing;

Question 31

discuss section 128A of crimes act 1961 in relation to invalid consent

Answer 31

allowing sexual activity does not amount to consent in some circumstances
1) does not protest or offer physical resistance to the activity

2) he or she allows the activity because of
a) force applied to him/her or other person
b) threat of application of force to him/her or other person
c) the fear of the application of force to him/her or some other person

3) if the activity occurs while he or she is asleep or unconscious
4) if the activity occurs while he or she is so affected by alcohol or drugs
5) if the activity occurs while he or she is affected by an intellectual, mental or physical condition or impairment
6) mistaken identity of whom the other person is
7) mistaken about the nature and quality of the act