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CIB Modules > Sexual Offending > Flashcards

Sexual Offending Flashcards

1
Q

When is the offence of sexual grooming complete.

131B

A
  • when the offender intentionally meets the young person OR
  • when the offender travels with intention of meeting the young person OR
  • when the offender arranges for or persuades the young person to travel with the intention of meeting him or her (arranges a meeting)
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2
Q

When can a previous consistent statement be admitted.

A

Previous consistent statements will really only be admissible as rebuttal evidence

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3
Q

How far out must a prosecutor give the transcript to the defence before preliminary hearing or defended summary hearing.

A
  • at least 7 days
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4
Q

Sexual Connection (S2, CA1961)

A

a) Connection effected by the introduction into the genitals or anus of one person, except for genuine medical purposes
i) any part of the body of another person, or
ii) any object held or manipulated by another person

or

b) Any connection between the mouth or tongue of one person and any part of the genitals or anus of another

or

c) The continuation of any connection described in paragraphs a or b.

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5
Q

Unlawful Sexual Connection

A

Person a has unlawful sexual connection with person b if person a has sexual connection with person b

i) without person b’s consent to the connection
ii) without believing on reasonable grounds that person B was consenting to the connection

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6
Q

Defence under s134?

A
  • prior to the act, they had taken reasonable steps to ascertain that the young person was at least 16, and
  • at the time of the act, they believed on reasonable grounds that the young person was at least 16, and
  • the young person consented.
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7
Q

Police would remove a child from a household…

A
  • In cases involving:

Serious Wilful neglect

Serious physical abuse

Sexual assault

When a child is witness to a serious assault

Any allegations made against a CYF carer involving serious physical abuse

Any allegations made against CYF staff or Police involving serious physical abuse

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8
Q

S195 CA 1961, What is necessary to prove criminal liability in failing to protect a child…

A

That the child was Under the age of 18 at the time of the offence; AND
The defendant was over 18; AND
The defendant was a member of same household as the victim or a staff member at hospital,institution or residence of victim and had frequent contact with them; AND
The defendant had knowledge of the risk of harm to the child.

The offence applies to: members of the same household as the victim
staff of any hospital, institution or residence where the victim resides

Criminal liability will arise if the person has frequent contact with the child or vulnerable adult and

KNOWS (mens rea) the victim is at risk of death, GBH or sexual assault as a
result of the unlawful acts or omissions of another person; and

FAILS (actus reus) to take reasonable steps to protect the victim from that risk

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9
Q

In what other ways can a witness give evidence?

A
  • while in the courtroom but unable to see the defendant or some other specified person (Screens)
  • from an appropriate place outside the courtroom, either in New Zealand or elsewhere (CCTV)
  • by a video record made before the hearing of the proceeding (DVD)
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10
Q

Before attending a Medical Examination, what should you explain to a victim?

A

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:
  • potential benefit to their physical, sexual and mental health
  • how the examination can help Police obtain evidence to apprehend the offender

-the expected time frame for the examination and, if appropriate, possible
outcomes of the examination

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11
Q

What are the three areas to consider in determining whether physical abuse is serious and there meets the threshold for referral as a CPP case?

A

the action of the abuse

  • the injury inflicted, and
  • the circumstances (factors of the case)

3 initial steps
Referral - info sharing between agencies
Consultation - discussion at appropriate levels
Agreement - initial action plan - Initial Joint Action Plan

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12
Q

Can a child aged 12 consent to sexual intercourse?

Exceptional and rare circumstances

A

Yes in rare and exceptional circumstances.

R v COX
A child of 10 or 11 may be able to give full, voluntary and free consent to sexual intercourse, this would be exceptional if not rare. She may know what sex is, however cannot understand the significance of the act. Therefore it will not be legal consent

No reasonable adult would have grounds for believing the 10 or 11 y old has the experience or maturity to understand the significance of the act.

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13
Q

Is it an offence for an adoptive parent to have sexual intercourse with his 18 year old daughter?

A

Yes it is, an adoptive parent is a ‘parent’ thus incest.

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14
Q

At what age does a file become an ASAT file?

A

17 years or older at the time of making the complaint - NOT 16

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15
Q

No question can be put to the victim regarding… (S44, Evidence Act 2006)

A

-previous sexual history with any person other than the defendant

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16
Q

Things must the Crown prove in relation to an Indecent Assault?

A
  • defendant intentionally assaulted the complainant
  • the circumstances accompanying the assault were indecent

-the defendant intended the conduct that a reasonable person would find
indecent

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17
Q

What are the three categories of file in relation to ASA?

A

Acute/non-acute/historic

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18
Q

Define Consent

A

Consent is a persons conscious and voluntary agreement to do something desired or proposed by another.

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19
Q

R v LEESON

A

The definition of ‘indecent assault’… is an assault accompanied with circumstances of indecency.

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20
Q

S128A

The following circumstances do not constitute consent:

A

The following circumstances do not constitute consent:

  • not offering physical resistance do to use of force, fear of force or threat of force
  • asleep or unconscious
  • affected by drugs or alcohol
  • mental or physical impairment
  • mistaken ID
  • mistaken as to nature and quality of the act
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21
Q

Before attending a MEK, what would you remind the victim?

A
  • 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
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22
Q

In certain circumstances S87 EA2006, the Judge can ask the witness to state their address details. In what circumstances will this occur?

A
  • if 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.
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23
Q

When is the offence of having exploitative sexual connection with a person with a significant impairment complete:

138 CA 61 - 10 years

asp u

A

(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 persons acquiescence in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment.

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24
Q

R v Kaitamaki

A

If, after he penetrated a woman, a man realises that she is not consenting but he continues, the act of intercourse then becomes rape

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25
Q

No presumption because of age

A

Sec 127

There is no presumption of law that a person is incapable of sexual connection because of his r her age

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26
Q

What must be proved beyond reasonable doubt in all cases of sexual violation?

A

There was an intentional act by the offender involving sexual connection with the complainant AND

The complainant did not consent to the sexual act AND

The offender did not believe the complainant was consenting OR

If he did believe she was consenting, the grounds for such belief were not reasonable

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27
Q

Child

A

S132 (6) (a)

Child means a person under 12 years of age

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28
Q

Indecent act on a child 132 (3)

It is immaterial if:

A

The offender does the act on the child
The child does the act of the offender
The act is mutual

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29
Q

Section 134 (6) (a)

A

Young person means a person aged under 16 years

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30
Q

What are the 3 offences under 134

A

Having sexual connection 134(1)
Attempts to have sexual connection 134 (2) - 10 years
Does an indecent act 134 (3)

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31
Q

Incest 130(1) - 10 years if 16 and over

A

(1) Sexual connection is incest if
(a) it is between two people whose relationship is that of:
Parent and child (includes adoptive)
Siblings
Half siblings
Grandparent and grandchild
AND
(b) The person charged knows of the relationship
(2) everyone over 16 years who commits incest is liable to imprisonment for a term of 10 years

32
Q

Indecent Assault - Crown must prove 3 things

A

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

33
Q

Sexual conduct with a dependant family member

A

Section 131

(1) 7 - has sexual conduct with a dependant family member under the age of 18 years
(2) 7 - Attempts to have…….
(3) 3 - Does an indecent act of a dependant family member under the age of 18 years
(4) Dependant family member cannot be charged
(5) Consent is not a defence

34
Q

Dependant Family Member defined

A

131A(1) CA 61
Dependant family member defined

For the purposes of section 131, one person is a dependant family member of another person -

(a) if the other person has power of 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 a 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 defacto 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 family group, and the other person -
(i) is not a person referred to in paragraph (a); but
(ii) has 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 family member of the other persons family, and the other person is not referred to in para (a) but has -
(i) power of authority over him or her; and
(ii) a responsibility for, or significant role in, his or her car or upbringing

35
Q

129A - Sexual conduct by coercion - 14

A

induced to the connection by threat…..

Does not involve force
an accusation of disclosure and misconduct that is likely to seriously damage reputation…

36
Q

Genitalia Sec 2 CA 61

R V Koroheke

A

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

The genitalia comprise the reproductive organs, interior and exterior…they include the vulva and the labia, both interior and exterior at the opening of the vagina.

37
Q

Sec 4 Evidence Act 2006

Sexual Case

A

Means a criminal proceeding in which the person is charged or is waiting to be sentenced or otherwise dealt with for -

(a) an offence against 128 - 142A CA61
(b) any other offence of a sexual nature

38
Q

Section 44 Evidence Act 2006

Protecting victims character

A

No questions about sexual experience of the complainant with any other person except the defendant EXCEPT WITH THE PERMISSION OF THE JUDGE - directly relevant or not to would be contrary to the interests of justice

39
Q

Section 87 Evidence Act 2006

Privacy witness address

A

Address not to be disclosed/No questions/remarks without the permission of the judge - directly relevant or not to would be contrary to the interests of justice

40
Q

Section 88 Evidence Act 2006

Occupation

A

No question to be asked or evidence given of complainants occupation - unless Judge satisfied direct relevance and exclusion contrary to the interests of justice

41
Q

Penetration

A

Introduction and penetration have the same meaning.

Introduction to the slightest degree is enough to effect a connection. Sec 2A(1) CA 61

Proof of penetration is required

  • the complainants evidence
  • medical examination (DNA, injuries)
  • accused’s admissions
42
Q

Consent

R v Cox

Matters that do not constitute consent - Sec 128A CA 61

A

Consent is a persons conscious and voluntary agreement to do something desired or proposed by another

Consent must be full, voluntary, free and informed…freely and voluntarily given by a person in a position to form a rational judgement
R v Cox

Matters that do not constitute consent - Sec 128A CA 61

  • Not protesting or resisting
  • Application of force to self or other, threats of force to self or other, fear of force to self or other
  • Asleep or unconscious
  • So affected by drugs/alcohol that they cannot consent
  • So affected bymental or physical impairment that they cannot consent
  • Mistaken ID
  • Mistaken to the nature or the quality of the act
43
Q

Reasonable Grounds

A

Establishing reasonable grounds is a 3 step process

Subjective Test - Step 1 - Absence of Consent
What was the complainant thinking at the time? Was s/he consenting?

Subjective Test - Step 2 - Belief in Consent
If s/he was not consenting did the offender believe the complainant was consenting? 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?

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
R v Gutuama

44
Q

Penis

A

Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis whether the person concerned is male, female or of indeterminate sex - Sec 2 CA 61

45
Q

Proving Age

A

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age
R v Forest and Forest

In practice this generally involves producing the victims birth certificate in conjunction with independent evident that identifies the victim as the person names in the certificate.

46
Q

Indecent Act

Indecency

A

An act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values.

Indecency
Indecency means conduct that right thinking people will consider an affront to the sexual modestly of the complainant. R v Court

If such an act is done with the consent of the Child(young person), it is immaterial whether:

  • the offender does the act on the child (yp)
  • the child (yp) does the act on the offender
  • the act is mutual
Doing an indecent act on a child (yp) includes indecently assaulting the child
Sec 132(6)(b) or Sec 134(6)(b)
47
Q

Serious Wilful neglect

A

Wilfully ill-treats or neglects child or permit same likely to cause actual bodily harm, injury to health or mental disorder/disability or expose child to harmful toxic environment eg clan lab, immediate danger

48
Q

IJIP include

Response

A 
Safety of the child
Joint visits needed
Initial interview of the child
Child forensic interview
Referral to medical practitioner

Critical or very urgent - within 24 hours
Urgent - within 2 full working days

49
Q

What to take to MEK

A

Evidence Toxicology Kit
Change of Clothing
MEK
Info for Doc

50
Q

MEK post exam procedure

A

Dr:

  • Seals, labels all samples
  • Bags, seals, labels clothing

Before MEK sealed - O/C debrief with Dr:

  • Advise on immediate needs
  • Verbally summarise exhibits
  • ID forensic items
  • ID injuries
  • Any significant disclosures

Dr seals MEK and hands to O/C

  • Sealed MEK
  • Tox kit
  • Removed Clothing

Police secure in fridge
Police collect and secure any other clothing

51
Q

After MEK

A

Does victim wish to make formal complaint

Reassess and consider
- Public Safety
-Need to Secure/preserve evidence
- Secure/contain crime scene
-ID/locate witnesses
ID/apprehend suspect
52
Q

Information to be provided to Victims

A 
ASA support services
Info about Police investigation/process/timing
Initial actions
Med exam
Formal interview
Clarify expectations on reporting
53
Q

Primary objective of Medical Examination

A

Victims physical, sexual and mental health safety

54
Q

Before medical

A 
Contact Dr
Advise gender and age
When assault occurred
Brief outline
Arrange time
Specialist crisis support
55
Q

Consent - What must be proved?

A

Crown must prove beyond reasonable doubt that:

  • there was an intentional act by the offender involving sexual connection with the complainant, AND
  • the complainant did not consent to the sexual act, AND
  • the offender did not believe the complainant was consenting, OR
  • if the offender did believe the complainant was consenting, the grounds for such belief were not reasonable

Therefore must prove:
The defendant knew no consent but acted anyway -MENS REA, or
The grounds for believing consent were unreasonable

56
Q

128B

A

Sexual Violation

(1) Everyone who commits sexual violation is liable for a term of imprisonment not exceeding 20 years.
(2) A person convicted of unlawful sexual connection must be sentenced to imprisonment unless, having regard to the matters stated in s/section (3), the court thinks that the person should not be sentenced to imprisonment.
(3) The matters are-
(a) the particular circumstances of the person convicted, and
(b) the particular circumstances of the offence, including the nature of the conduct constituting it.

57
Q

Difference between rape and usc

A

Penis > Genitalia = Rape
Any other part of body > G/A = USC
Mouth or tongue > G/A = USC
Object held > G/A = USC

58
Q

For a charge under 129(1) Attempts to commit Sexual Violation what must be proved?

A

Crown must prove that at the time of the defendants conduct he:

  • INTENDED to have sexual connection with the complaint AND
  • the complainant did not consent to the intended sexual connection, AND
  • the defendant did not believe on reasonable grounds that the complainant was consenting.

Reckless = no consent on reasonable grounds

59
Q

R V Harpur - Attempt

A

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”.

60
Q

Indecent Act definition

A

An act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values.

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
61
Q

Indecent Assault S135 - Crown must prove

A

Crown must prove that:

  • 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
62
Q

Sexual Conduct with consent induced by certain threats

129A(5)(a)

A

(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) will make an accusation or disclosure about misconduct by any person that is likely to seriously damage the reputation

63
Q

Difference between 128 and 129A

A

Consent to sexual connection induced by certain threats but with no violence - 129A

64
Q

Section 144A - Sexual Conduct with a child outside NZ

A

If it is an offence in NZ then it is an offence outside of NZ if a NZ citizen or resident of NZ

65
Q

Section 121 Evidence Act 2006

A

It is not necessary that evidence that the prosecution relies on is corroborated

66
Q

Under section 103(3) witness giving evidence in alternative manner, made on the grounds of…

A
  • Age or maturity of witness
  • physical, intellectual, psychological, psychiatric impairment
  • fear of intimidation
  • trauma suffered
  • language barrier or cultural background/religion
  • nature of the proceeding
  • nature of evidence expected to give
  • relationship between witness and any party in proceeding
  • absence/likely absence from NZ
67
Q

Serious Child abuse includes:

A

Sexual abuse
Serious Physical abuse
Serious wilful neglect
Serious FV where the child is a witness
Allegations against CYF caregivers that involve serious child abuse
Allegations against CYF and Police employees that involve serious child abuse

68
Q

Determining the seriousness of the abuse

A

Action - eg - blow or kick to the head, strangulation
Injury - eg - death, burn, bone fracture, unconscious, bruises on baby
Circumstances -eg - More than one offender, History of abuse, High degree of violence, Offenders History, Vulnerability of the child, Location of incident (kindy)

69
Q

Response Times CYF

A

Critical or very urgent cases - within 24 hours

Urgent - within 2 full working days

70
Q

CYFs initial 3 process steps

A

Referral - Police and CYP advise each other - phone/electronic

Consultation - discuss what approach to take - confirm CYF case and share information

Agreement IJIP - who is involved in the case, what they will do, when they will do it

71
Q

Joint Investigation Plan must include

A 
Safety of the child
Any joint visits needed
Management of initial interview
Need for specialist interview
Collection of forensic evidence
Referral to Medical Practitioner (and authority to do so)
72
Q

ASA Timeframes

A

Acute - within 7 days
Non-Acute - 7 or more days after sexual assault - less than 6 months
Historic - after 6 months of the sexual assault

73
Q

Purpose of Prelim interview -ASA

A

What, When, Where it happened
Who was the offender

To establish:
What further investigation actions are necessary
Whether an offence has occurred AND
Whether the victim wants to make a formal complaint

74
Q

After Prelim Interview - ASA

A 
What further investigation necessary including:
Public Safety
Preserve evidence
Tox kit for urination
Secure crime scene
ID and locate witnesses
ID and apprehend the suspect
75
Q

Aims and objectives of the medical - ASA

A

Phyiscal, sexual and mental health

Collect trace evidence

76
Q

After CYF interview police must…

A

Review the impact of information disclosed

Update CYF on any information disclosed and discuss care and protection concerns. IJIP may need to be amended

77
Q

Doctors 2 main priorities

A

Safety and wellbeing paramount

Physical, mental, sexual health and safety.

Then forensic trace evidence

CIB Modules (6 decks)

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