SEXUAL OFFENCES - Ingredients => Definitions Flashcards
A person
Person
Gender neutral, proven by judicial notice or circumstantial evidence.
RTS
Rapes
Rape - Section 128(2), Crimes Act 1961
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 consented to the connection.
Penetration – Section 2 (1A) Crimes Act 1961
Introduction and penetration have the same meaning,
Introduction to the slightest degree is enough to effect a connection.
**Proof of penetration is required. **
Proof may be provided by:
- The complainant’s evidence
- Medical examination, (DNA, injuries)
- Accused’s admissions.
Genitalia - Section 2, Crimes Act 1961
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).
R v KOROHEKE
Genitalia comprise the the reproductive organs, interior and exterior, Includes the vulva and labia both interior and exterior, at the opening of the vagina.
Penis - Section 2, Crimes Act 1961
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 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 – Section 128A, Crimes Act 1961
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:
The establishing of Reasonable grounds is a three step process
Subjective Test - Step 1
Absence of Consent
What was the complainant thinking at the time? Was she consenting?
Subjective Test – Step 2
Belief in Consent
If she wasn’t consenting did the offender believe she was consenting? ie what was the offender thinking at the time.
Objective Test – Step 3
Reasonable grounds for belief in consent
If the offender believed the complainant was consenting, was that belief reasonable in the circumstances. Ie 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.”
RTS
Another person
Person
Gender neutral, proven by judicial notice or circumstantial evidence.
RTS
Has unlawful Sexual Connection
Unlawful Sexual Connection
Section 128(3), Crimes Act 1961
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 was consenting to the connection.
Sexual Connection S2, CA61
a) Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purpose of:
- A part of the body of another person (or)
- An object held or manipulated by another person
(or)
b) Connection between the mouth or tongue of one person and part of another person’s genitalia or anus.
(or)
c) The continuation of connection of a kind described on paragraph (a) or paragraph (b).
Introduction - Section 2 (1A) Crimes Act 1961
Introduction to the slightest degree is enough to effect a connection.
**Proof of introduction is required. **
Proof may be provided by:
- The complainant’s evidence
- Medical examination, (DNA, injuries)
- Accused’s admissions.
Genitalia
The genitalia or genitals (literally: organs of generation) include the penis and testicles of a male, and the vagina and vulva of a female.
Genitalia Section 2, Crimes Act 1961
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).
R v KOROHEKE
The genitalia comprise the the reproduction organs, interior and exterior, Includes the vulva and labia both interior and exterior, at the opening of the vagina.
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.
**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:
The establishing of Reasonable grounds is a three step process
Subjective Test - Step 1
Absence of Consent
What was the complainant thinking at the time? Was she consenting?
Subjective Test – Step 2
Belief in Consent
If she wasn’t consenting did the offender believe she was consenting? ie what was the offender thinking at the time.
Objective Test – Step 3
Reasonable grounds for belief in consent
If the offender believed the complainant was consenting, was that belief reasonable in the circumstances. Ie 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 defendants shoes could have thought that the complainant was consenting.
RTS
With another person
Person
Gender neutral, proven by judicial notice or circumstantial evidence.
RTS
Assaults another person
Assault:
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; and to assault has a corresponding meaning.
Sec. 2, Crimes Act 1961
Person
Gender neutral, proven by judicial note or circumstantial evidence.
RTS
With intent to commit sexual violation
Intent
A person does something intentionally if they mean to do it; they desire a specific result and act with the aim or purpose of achieving it.
R v MOHAN
Intent involves a decision to bring about in so far as it lies within the accused’s power, the commission of the offence.
R v WAAKA
A ‘fleeting or passing thought is not sufficient’; there must be a ‘firm intent or a firm purpose to effect an act’.
Sexual Violation:
(1) Sexual Violation is the act of a person who –
(a) rapes another person; or
(b) has unlawful sexual connection with another person
Sec. 128(1), Crimes Act 1961
** Sec.128 (2), Crimes Act 1961**
Rape:
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.
OR
Unlawful Sexual Connection:
Sec.128 (3), Crimes Act 1961
Person A has unlawful sexual connection with Person B if Person A has sexual connection with Person B -
without person B’s consent to the connection,
and
without believing on reasonable grounds that person B consents to the connection
Sexual Connection:
**(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)
Sec 2, Crimes Act 1961
RTS
of the other person
Of the other person:
Person: Refer 1.1
RTS
Has Sexual Connection
Sexual Connection - Section 2, Crimes Act 1961
a) Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purpose of:
- A part of the body of another person (or)
- An object held or manipulated by another person
(or)
b) Connection between the mouth or tongue of one person and part of another person’s genitalia or anus.
(or)
c) The continuation of connection of a kind described on paragraph (a) or paragraph (b).
Introduction - Section 2 (1A) Crimes Act 1961
Introduction to the slightest degree is enough to effect a connection.
**Proof of introduction is required. **
Proof may be provided by:
- The complainant’s evidence
- Medical examination, (DNA, injuries)
- Accused’s admissions.
Genitalia – Section 2, Crimes Act 1961
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).
R v KOROHEKE
Genitalia comprise the the reproduction organs, interior and exterior, Includes the vulva and labia both interior and exterior, at the opening of the vagina.
With a Dependant Family Member
under the age of 18 years
Dependant Family Member
Section 131A (1), Crimes Act 1961
**Dependent family member defined - **
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; 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
Section 131A (1)(b), Crimes Act 1961
if they are members of the same family, whanau, or other culturally recognized 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
Section 131A (1)(c), Crimes Act 1961
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.
Section 131A, Crimes Act 1961
(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 Children, Young Persons, and Their Families 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.
Proving Age:
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”.
In practice this generally involves producing the victim’s birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
RTS
With a child
Child – Section 132(6)(a), Crimes Act 1961
Child means a person under the age of 12 years.
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.
In practice this generally involves producing the victim’s birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
RTS
Does an Indecent Act
Indecent Act:
An act that is “indecent” has sexual connotations and involves conduct directed at a person that is offensive to public moral values.
R v COURT
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of the complainant”.
If such an act is done with the consent of the child, it is immaterial whether:
- the offender does the act on the child
- the child does the act on the offender
- the act is mutual
Section 132(6)(b), Crimes Act 1961
Doing an indecent act on a child includes indecently assaulting the child
RTS
On a child
(Same as ‘With a child’)
Child – Section 132(6)(a), Crimes Act 1961
Child means a person under the age of 12.
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.
In practice this generally involves producing the victim’s birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
RTS
With a young person
Young person – Section 134(6)(a), Crimes Act 1961
Means a person under the age of 16yrs.
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.
In practice this generally involves producing the victim’s birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
RTS
Any Person
Person
Gender neutral, proven by judicial note or circumstantial evidence.
RTS
