Sexual Offences MC & SA Flashcards
List the two main forms of sexual violation.
Rape and Unlawful Sexual Connection.
Discuss the penalty provisions for sexual violation as set out in s128B of the Crimes Act 1961
20 Years
Define the term ‘genitalia’.
Genitalia are the external organs of reproduction in males and females. As the term literally means the organs of generation, it does not include pubic hair or breasts. It also includes surgically constructed organs
In negating consent, the Crown has to prove one of three things. List the three things
In proving that consent was not present in a case of sexual violation, the Crown must prove that:
− the victim did not consent, or
− the victim’s consent was not valid, or
− the defendant did not believe on reasonable grounds that the victim was consenting.
Discuss the two elements that need to be proved in a charge of Assault with Intent to Commit Sexual Violation, section 129 Crimes Act 1961.
The offender:
- assaulted the victim, and
- intended to commit sexual violation
What is the definition of ‘consent’?
“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another
Define ‘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).
Discuss the statutory defence for s134A – sexual conduct with a young person under 16 years.
− 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 sexual connection.
Define sexual conduct with a child under 12.
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.
Discuss whether a 16-year-old girl can be charged with having consensual sex with a 14-year-old boy.
Yes, the girl can be charged as it is the offence of sexual conduct with a young person under 16 years (s134 Crimes Act 1961).
Define ‘indecent act’.
‘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.
List three 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.
(3) A direction under subsection (1) that a witness is to give evidence in an alternative way, may be made on the grounds of—
(a) the age or maturity of the witness
(b) the physical, intellectual, psychological, or psychiatric impairment of the witness
(c) the trauma suffered by the witness
(d) the witness’s fear of intimidation
(e) the linguistic or cultural background or religious beliefs of the witness
(f) the nature of the proceeding
(g) the nature of the evidence that the witness is expected to give
(h) the relationship of the witness to any party to the proceeding
(i) the absence or likely absence of the witness from New Zealand
(j) any other ground likely to promote the purpose of the Act.
Discuss the requirement under reg 28 of the Evidence Regulations 2007.
Video recording
Prosecutor to give transcript to defence after defendant pleads not guilty
(1) The prosecutor must ensure a typed transcript of a working copy is given to the defendant or the defendant’s lawyer as soon as 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 subclause (1) has not been complied with.
List three ways under s105 that a witness may give evidence.
The witness may give evidence:
(i) while in the courtroom but unable to see the defendant or some other specified person; (screens) or
(ii) from an appropriate place outside the courtroom, either in New Zealand or elsewhere; (CCTV) or
(iii) by a video record made before the hearing of the proceeding. (video recording)
It is important to preserve trace evidence in sexual assault cases. List four things that victims should refrain from (where possible) before a medical examination.
− no eating or drinking.
− no going to the toilet (if necessary, use a toxicology kit to capture urine and ask the female victim not to wipe)
− no washing or showering
− no washing of hands or biting fingernails.
List the points that you would cover with a victim to explain the medical forensic examination procedure.
− that 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 including:
• the potential benefit to their physical, sexual and mental health
• how the examination can help Police obtain evidence to apprehend the 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. (Research indicates that most ASA victims identify gender as an issue and indicate a preference for examination by a female.)
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?
The mnemonic CALM TEA stands for:
− Conduct your dealings in a sensitive and concerned manner.
− Accept they are telling the truth until/unless 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 to just 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.
List the three areas to consider when determining “seriousness of physical abuse”.
− the action of the abuse
− the injury inflicted, and
− the circumstances (factors of the case).
List four Police responsibilities to victims and their 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 filed
− 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 the victim 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.
Define “child abuse” as outlined in the Children, Young Persons and their Families Act 1989.
Child abuse is defined in the Children, Young Persons and their Families Act 1989 as the harming (whether physically, emotionally, or sexually), ill-treatment, abuse, neglect, or deprivation of any child or young person.
In relation to child abuse investigations, define what the term “child-centred timeframes” means.
Child-centred time frames are time frames that are relevant to the child’s 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.
R v Harpur
Attempts
R v Harpur (2010) 24 CRNZ 909
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”.
“[The Court may] have regard to the conduct 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, though not determinative.”
Matters that do not constitute consent
Sec 128A CA 1961
- not protesting or offering physical resistance to use force.
- application of force to self or others, threats of force to self or others or fear of force to self or others
- asleep or unconscious
- so affected by drugs/alcohol they cannot consent
- so affected by mental or physical impairment they cannot consent
- mistaken ID
- mistaken as to the nature and quality of the act
(Only include those relevant to the scenario, if any)
12 Process Points for Adult Sexual Assault Policy and Procedure
Initial Action on contact - Brief Details Case Referral - CIB/ASA Specialist Support Preliminary Interview Information Feedback Medical Examination Formal Interview Investigation and Evidence assessment - Case investigation Plan Resolution Options Prosecution Final Actions and record keeping Preventative Opportunities
Sexual conduct with children outside NZ
explain section 144A
If you are a N.Z citizen or ordinary resident and are outside N.Z and commit
- offences against section 132
- offences against section 134
- prostitution with person under 18
You are liable to same penalty as if offence was in N.Z
Who can lay a charge under section 144A
- Sexual conduct with children and young people outside New Zealand
Attorney-General
Section 44 Evidence Act 2006
identify and discuss
(1) In a sexual case no evidence can be given or question put to a witness relation to their sexual experience other than with the defendant.
(2) no evidence or questions regarding complainants sexual reputation
(3) Judge can grant permission if it is contrary to the interests of the public to exclude it
Section 87 Evidence Act 2006
identify and discuss
Particulars of the witnesses address may not be questioned or included unless permission from the judge
Section 88 Evidence Act 2006
identify and discuss
In a sexual case, except with the permission of the Judge,—
(a) no question may be put to the complainant or any other witness, and no evidence may be given, concerning the complainant’s occupation; and
(b) no statement or remark may be made in court by a witness, lawyer, officer of the court, or any other person involved in the proceeding concerning the complainant’s occupation.
ASA
Purpose of preliminary interview
Gain a better understanding of what has occurred and to determine:
- What further investigation actions are necessary
- Whether an offence may have occurred, and
- Whether the victim wishes to make a formal complaint
- Victim safety
- Public Safety
Defence to a charge of sexual connection with young person
Section 134A CA 61
- Taken reasonable steps to ascertain YP was 16 AND
- Believed on reasonable grounds the YP was at least 16 AND
- The YP consented
Who does ASA policy apply to
Any person 18 or over at time of reporting a sexual assault
including
- rape, USC
- indecent assault
- unwanted or coercive touching of a sexual nature
- sexual abuse
- incest
ASA investigator
Employee who has completed the specialist training or CIB Induction course
ASA timing categories
Acute - 1 to 7 days
Non acute - 7 days to 6 months
Historic - 6 months on
ASA information to give medical practitioner
- Age and Gender
- When the assault occurred
- Brief outline of information, inc drugs, injuries, intoxication
- if relevant discuss victims wishes about doctors gender
ASA
Debrief of medical practitioner
(before MEK kit sealed)
- Immediate needs of victim
- Verbally summarie exhibits
- Identify forensic items for ESR
- Identify injuries for Photography
- Any significant disclosures by victim
Age for CPP and criteria
Under 18 at time of making complaint
- sexual abuse
- physical abuse
- neglect
Physical abuse injuries/actions for CPP referrals
- blow or kick to head
- shaking an infant
- strangulation
- use of an object as a weapon
- attempted drowning
- a bone fracture
- burn
- concussion or loss of consciousness
- any injury hat requires medical attention
- any bruising or abrasion (when infant)
Initial 3 steps OT and police must follow
CPP
Referral (info sharing between the 2 agencies)
Consultation (discussion at appropriate levels)
Agreement (on initial action, initial joint investigation plan)
CPP timeframes
Critical - 24hrs
Very urgent - 48hrs
Urgent - 7 days
Definition of physical abuse
CPP
The actions of an offender that result in or could potentially result in physical harm or injury being inflicted on a child. This can also be known as a non-accidental injury. The test for seriousness is determined by considering the action, injury and circumstances.
CPP neglect
Person neglect or ill treats a child in a manner likely to cause actual bodily harm, injury, mental disorder, disability
- not providing food shelter
- not protecting child from physical harm
- not accessing medical treatment
- exposing child to drugs
- expose child to toxic chemicals
Definition of sexual abuse
CPP
Act involving circumstances of indecency with, or sexual violation of, a child, or using a child in the making of sexual imaging
CPP circumstances
- Child Vulnerability (age, disablity)
- More than one offender (both parents, family members)
- History (other incidents, previous death of sibling)
- High degree of violence (frenzied, enhanced maliciousness or cruelty)
- Offenders history (severe and frequent family violence, criminal history)
- Location (educational or health facility)
- Nature and level of concern (notifier is witness, source)
Questioning a child
Do not ask if
- Child has made a clear disclosure to adult and the adult can give the information
- If it is unclear what the child has said AND there are no safety concerns
- if it becomes clear while speaking with child that an offence has occured
CPP
Critical
24hrs
No safety or care identified; mokopuna is at risk of serious harm, and requires immediate involvement to establishment safety
CPP
Very Urgent
48hrs
At risk of serious harm but has some protective factors present for the next 48hrs. However, as the present situation and/or need is likely to change, high priority follow up is required
CPP
Urgent
7 days
At risk of harm or neglect and the circumstances are likely to negatively impact on mokopuna. Options of safety and supports have been explored but remain unmet. Vulnerability and pattern exists which limits the protective factors
Exploitave sexual connection
Has sexual connection with an impaired person knowing the impaired person has significant impairment
OR
Obtained the connection by taking advantage of the impairment
Significant impairment
Intellectual, mental or physical condition which significantly impairs a persons capacity to
- understand the nature of the sexual conduct
- understand the nature of the decisions about sexual conduct
- foresee the consequences of decisions
- communicate decisions
R v Koroheke
Consent
It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable.
R v Cox
Reasonable belief in consent of a child
Save in exceptional circumstances . . . Even where she indicates an agreement to the act occuring. . . no reasonable adult would have grounds for believing that a ten or 11 year old girl has the experience or maturity to understand the nature and significance of the act.
