Sexual Offending Flashcards
When is the offence of sexual grooming complete.
131B
- 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)
When can a previous consistent statement be admitted.
Previous consistent statements will really only be admissible as rebuttal evidence
How far out must a prosecutor give the transcript to the defence before preliminary hearing or defended summary hearing.
- at least 7 days
Sexual Connection (S2, CA1961)
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.
Unlawful Sexual Connection
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
Defence under s134?
- 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.
Police would remove a child from a household…
- 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
S195 CA 1961, What is necessary to prove criminal liability in failing to protect a child…
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
In what other ways can a witness give evidence?
- 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)
Before attending a Medical Examination, what should you explain to a 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:
- 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
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?
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
Can a child aged 12 consent to sexual intercourse?
Exceptional and rare circumstances
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.
Is it an offence for an adoptive parent to have sexual intercourse with his 18 year old daughter?
Yes it is, an adoptive parent is a ‘parent’ thus incest.
At what age does a file become an ASAT file?
17 years or older at the time of making the complaint - NOT 16
No question can be put to the victim regarding… (S44, Evidence Act 2006)
-previous sexual history with any person other than the defendant
Things must the Crown prove in relation to an Indecent Assault?
- defendant intentionally assaulted the complainant
- the circumstances accompanying the assault were indecent
-the defendant intended the conduct that a reasonable person would find
indecent
What are the three categories of file in relation to ASA?
Acute/non-acute/historic
Define Consent
Consent is a persons conscious and voluntary agreement to do something desired or proposed by another.
R v LEESON
The definition of ‘indecent assault’… is an assault accompanied with circumstances of indecency.
S128A
The following circumstances do not constitute consent:
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
Before attending a MEK, what would you 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
In certain circumstances S87 EA2006, the Judge can ask the witness to state their address details. In what circumstances will this occur?
- 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.
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) 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.
R v Kaitamaki
If, after he penetrated a woman, a man realises that she is not consenting but he continues, the act of intercourse then becomes rape
No presumption because of age
Sec 127
There is no presumption of law that a person is incapable of sexual connection because of his r her age
What must be proved beyond reasonable doubt in all cases of sexual violation?
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
Child
S132 (6) (a)
Child means a person under 12 years of age
Indecent act on a child 132 (3)
It is immaterial if:
The offender does the act on the child
The child does the act of the offender
The act is mutual
Section 134 (6) (a)
Young person means a person aged under 16 years
What are the 3 offences under 134
Having sexual connection 134(1)
Attempts to have sexual connection 134 (2) - 10 years
Does an indecent act 134 (3)
Incest 130(1) - 10 years if 16 and over
(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
Indecent Assault - Crown must prove 3 things
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
Sexual conduct with a dependant family member
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
Dependant Family Member defined
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
129A - Sexual conduct by coercion - 14
induced to the connection by threat…..
Does not involve force
an accusation of disclosure and misconduct that is likely to seriously damage reputation…
Genitalia Sec 2 CA 61
R V Koroheke
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.
Sec 4 Evidence Act 2006
Sexual Case
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
Section 44 Evidence Act 2006
Protecting victims character
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
Section 87 Evidence Act 2006
Privacy witness address
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
Section 88 Evidence Act 2006
Occupation
No question to be asked or evidence given of complainants occupation - unless Judge satisfied direct relevance and exclusion contrary to the interests of justice
Penetration
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
Consent
R v Cox
Matters that do not constitute consent - Sec 128A CA 61
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
Reasonable Grounds
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
Penis
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
Proving Age
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.
Indecent Act
Indecency
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)
Serious Wilful neglect
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
IJIP include
Response
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
What to take to MEK
Evidence Toxicology Kit
Change of Clothing
MEK
Info for Doc
MEK post exam procedure
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
After MEK
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
Information to be provided to Victims
ASA support services Info about Police investigation/process/timing Initial actions Med exam Formal interview Clarify expectations on reporting
Primary objective of Medical Examination
Victims physical, sexual and mental health safety
Before medical
Contact Dr Advise gender and age When assault occurred Brief outline Arrange time Specialist crisis support
Consent - What must be proved?
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
128B
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.
Difference between rape and usc
Penis > Genitalia = Rape
Any other part of body > G/A = USC
Mouth or tongue > G/A = USC
Object held > G/A = USC
For a charge under 129(1) Attempts to commit Sexual Violation what must be proved?
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
R V Harpur - Attempt
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”.
Indecent Act definition
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
Indecent Assault S135 - Crown must prove
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
Sexual Conduct with consent induced by certain threats
129A(5)(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
Difference between 128 and 129A
Consent to sexual connection induced by certain threats but with no violence - 129A
Section 144A - Sexual Conduct with a child outside NZ
If it is an offence in NZ then it is an offence outside of NZ if a NZ citizen or resident of NZ
Section 121 Evidence Act 2006
It is not necessary that evidence that the prosecution relies on is corroborated
Under section 103(3) witness giving evidence in alternative manner, made on the grounds of…
- 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
Serious Child abuse includes:
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
Determining the seriousness of the abuse
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)
Response Times CYF
Critical or very urgent cases - within 24 hours
Urgent - within 2 full working days
CYFs initial 3 process steps
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
Joint Investigation Plan must include
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)
ASA Timeframes
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
Purpose of Prelim interview -ASA
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
After Prelim Interview - ASA
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
Aims and objectives of the medical - ASA
Phyiscal, sexual and mental health
Collect trace evidence
After CYF interview police must…
Review the impact of information disclosed
Update CYF on any information disclosed and discuss care and protection concerns. IJIP may need to be amended
Doctors 2 main priorities
Safety and wellbeing paramount
Physical, mental, sexual health and safety.
Then forensic trace evidence
