Sexual Offences Module Flashcards
List the two main forms of sexual violation
The two forms of sexual violation are rape and unlawful sexual connection
Discuss the penalty provisions for sexual violation as set out in s128B of the Crimes Act 1961.
Section 128B of the Crimes Act 1961 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.
Define the term ‘genitalia’.
Case Law
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.
R v Koroheke
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.
Subjective/Subjective/Objective
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 two elements to be proved in the charge of assault with intent to commit sexual violation are that the offender:
− assaulted the victim, and
− intended to commit sexual violation.
What is the definition of ‘consent’?
Case Law
“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.
R v Cox
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.
There is a statutory defence for sexual conduct with a young person (s134A). This statutory
defence applies only 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 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’.
Case Law
‘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.
R v Leeson (assault accompanied by circumstances of indecency)
R v Court (conduct right thinking people would consider an affront to the sexual modesty of the complainant)
R v Dunn ( Indecency must be judged in light of Time, place and circumstances, and must be something more than trifling)
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.
Under s103(3):
(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
Under reg 28:
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.
Remind the victim:
− 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.
Explain to the victim:
− 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”.
There are three areas to consider in determining whether physical abuse is serious and therefore meets the threshold for referral as a CPP case under this protocol:
− the action of the abuse
− the injury inflicted, and
− the circumstances (factors of the case).
List four Police responsibilities to victims and their rights.
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 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 timeframes are timeframes 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
Sexual Violation By Rape
Section 128(1)(a), Crimes Act 1961 - 20 years
A Person
Rapes
Another Person
Person
GN JN/CE
Rapes Rape - Definition Penetration Definition (Proof) Genitalia Definition R v Koroheke Penis Definition Consent R v Cox 128A Not consent Subjective,Subjective,Objective R v Gutuama
Person
GN JN/CE
Sexual Violation By Unlawful Sexual Connection
Section 128(1)(b), Crimes Act 1961 - 20 years
A Person
Has Unlawful Sexual Connection
with another Person
Person
GN JN/CE
Has Unlawful Sexual Connection
Unlawful Sexual Connection definition
Sexual Connection Definition Penetration Definition (Proof) Genitalia Definition R v Koroheke Object held or manipulated - explanation Consent R v Cox 128A Not consent Subjective,Subjective,Objective R v Gutuama
Person
GN JN/CE
Assault with Intent to Commit Sexual Violation
Section 129(2) Crimes Act 1961 - 10 years
A person
Assaults Another person
With intent to commit sexual violation
of the other person
Person
GN JN/CE
Assaults Another person
Assault Definition - Application of force
With intent to commit sexual violation Intent - Definition Sexual Violation Definition Rape or Unlawful Sexual Connection Definition Sexual Connection Definition R v Collister
Person
GN JN/CE
Sexual Conduct with dependant family member U18
Section 131(1), Crimes Act 1961 - 7 years
Everyone
Has Sexual Connection
with a dependant family member under 18 years
Everyone/Person
GN JN/CE
Has Sexual Connection Sexual Connection Definition Penetration Definition (Proof) Genitalia Definition R v Koroheke Object held or manipulated - explanation Consent R v Cox 128A Not consent Subjective,Subjective,Objective R v Gutuama
With a dependant family member under 18 years
Dependent family member definition
Proof of Age
R v Forrest & Forrest
Sexual Conduct with a child under 12 (1)(yrs)
Section 132(1), Crimes Act 1961 - 14 years
Everyone
Has Sexual Connection
With a child
Everyone/Person
GN JN/CE
Has Sexual Connection Sexual Connection Definition Penetration Definition (Proof) Genitalia Definition R v Koroheke Object held or manipulated - explanation
With a child
Child Definition (U12)
R v Forrest & Forrest
Sexual Conduct with a Child under 12 (3)
Section 132(3) Crimes Act 1961 - 10 years
Everyone
Does an Indecent Act
On a child
Everyone/Person
GN JN/CE
Does an Indecent Act
Indecent Act Definition
R v Court
Consent
On a child
Child Definition (U12)
R v Forrest & Forrest
Sexual Conduct with a Young Person under 16 (1)
Section 134(1), Crimes Act 1961 - 10 Years
Everyone
Has Sexual Connection
With a Young Person
Everyone/Person
GN JN/CE
Has Sexual Connection Sexual Connection Definition Penetration Definition (Proof) Genitalia Definition R v Koroheke Object held or manipulated - explanation
On a Young Person
Child Definition (U16)
R v Forrest & Forrest
Defence in regards to YP age
Sexual Conduct with a Young Person under 16 (3)
Section 134(3) Crimes Act 1961 - 7 years
Everyone
Does an Indecent Act
With a Young Person
Everyone/Person
GN JN/CE
Does an Indecent Act
Indecent Act Definition
R v Court
Consent immaterial
On a Young Person
Child Definition (U16)
R v Forrest & Forrest
Defence in regards to YP age
Indecent Assault (Section, Act, Ingredients, yrs)
Section 135 Crimes Act 1961 - 7 years
Everyone who
Indecently Assaults
Another Person
Everyone/Person
GN JN/CE
Indecently Assaults
R v Leeson (assault accompanied with circumstances of indecency)
Assaults Definition - Application of force
RTS
Must include:
- What constituted an assault including how the act was intentional
- What made the assault indecent
Another Person
GN JN/CE
Consent
Consent is a persons conscious and voluntary agreement to something desired or proposed by another
R v Cox
Subj/Subj/Obj
What was the complainant thinking at the time.
What was the defendant thinking at the time
What would a reasonable person have believed if placed in the same position as the defendant
What is the provision in s127?
s127, CA 1961
No presumption because of age
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
Explain the provisions relating to matters that do not constitute consent.
Crimes Act 1961, Section 128A
Circumstances in which a person allows sexual activity but it does not amount to consent:
- force, threat or fear of violence
- lack of protest or resistance
- asleep or unconscious
- affected by alcohol or drugs
- intellectual, mental or physical impairment
- mistaken as to identity
- mistaken as to nature and quality of act
What are the two offences under s129?
(1) Attempted sexual violation
(2) Assault with intent to commit sexual violation
Attempts
s72(1), Crimes Act 1961
Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his objective, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
