SEXY Flashcards
S128(1)(a)
Sexual Violation - Rape
- A person
- Rapes
- Another person
A person:
Generally accepted by judicial notes/ circumstantial evidence. - Must have a penis either born with or artificially constructed.
Rapes:
Penetration of the genitalia by a penis (includes surgically constructed)
- penetration: affected by the slightest degree s2 CA 61. (Proven by victim st, admission, and medical exam)
- genitalia: r v Korekohe: the reproductive organs internal/external, including the vulva and labia both internal and external at the opening of the Vagina.
Another person:
JN/CE - must have a vagina!
S128(1)(b)
Sexual violation - U/L Sexual connection
- a person
- has unlawful sexual connection
- w/ another person
A person:
JN/CE - gender neutral
Has unlawful sexual connection:
- Introduction to the genitalia or anus by a part of another’s body, object or tongue/mouth
- without consent
- without belief on reasonable grounds consent was given.
Penetration- affected by the slightest degree
Genitalia - reproductive organ int/ext including the vulva and labia both internal and external at the opening of the vagina.
Consent -
R v Cox - full, voluntary, free and informed. Freely and voluntarily given by a person to form a rational judgement.’
R v Korekohe - consent freely given, rather than submission to something unwanted or avoidable.
R v Gutuama - no person on reasonable grounds would think there was consent.
With another person:
JN/CE
What must the crown prove?
C O I
Complainant didn’t consent
Offender didn’t believe there was consent
If the offender believed there was consent, grounds for belief were unreasonable
S128A - consent
Consent is invalid if:
MINIFAP
M- mistaken identity
I - imparted - intellectual
N - nature and quality of the act.
I - impaired - drugs/alcohol
F - force/fear used
A - asleep or unconcious
P - protest or resitance
Sexual conduct with young person under 16
S134(1) CA 61
- a person
- has sexual connection
- with a young person
A person:
JN/CE - gender neutral
Has sexual connection:
Introduction into the genitalia or anus by any part of another’s body, object or mouth (excl legitimate medical exams)
Penetration
- affected by the slightest degree (proven by, victim st, admissions, medical exam)
Genitalia
R v Korekohe - reproductive organ int/ext including the vulva and labia both internal and external at the opening of the vagina
Consent: s134 - not a defence - 12-15 can provide consent
Defences - offender must take reasonable steps to find out age / believe on reasonable grounds at the time that the young person was over 16.
With a young person:
Y/P under 16 - gender neutral
R v forest and forest - best possible evidence adduced from age.
What section relates to consent for a Y/P in regards to defence
S134A
A young person consenting is not a defence, 12-15 may provide consent.
Defences to sexual connection with a young person
Offender must take reasonable steps to find out age / believe on reasonable grounds at the time that the young person was over 16
Sexual conduct with a child under 12 - (3)
S132(3) CA 61
- a person
- does an indecent act
- on a child
A person:
JN/CE - gender neutral
Does an indecent act:
Does an indecent act on another/permits person to do indecent act on them
R v Court: Conduct that right thinking people will consider an affront to sexual modesty of complainant
R v Dunn: Indecency must be judged in light of the time, place and circumstances.
On a child:
Child - under 12 - gender neutral
R v Forest and Forest: best possible evidence adduced from age.
Sexual conduct with a child under 12 - (1)
S132(1) CA 61
- A person
- has sexual connection
- with a child
A person:
Gender neutral JN/CE
Has sexual connection:
Introduction into the genitalia or anus by a part of another’s body, object or mouth
Penetration: affected by the slightest degree
Genitalia: reproductive organ int/ext including the vulva and labia both internal and external at the opening of the vagina.
Consent is no defence.
With a child
Gender neutral under the age of 12
R v Forrest and Forrest - best evidence adduced from age
Sexual conduct with a young person (3)
134(3) CA 61
- a person
- does an indecent act
- on a young person
A person:
JN/CE gender neutral
Does an indecent act:
Includes permits person to do an indecent act on them
R v Court: conduct that right minded people will consider an affront to the sexual modesty of complainant
R v DUNN: indecency must be judged in light of the time, place, circumstances
Consent s 134A - not a defence
12-15 can provide consent
Defences: Offender must take reasonable steps to find out age/believe on RG at the time the young person was over 16.
A young person:
R v Forrest and Forrest: best possible evidence adduced from age.
Under 16 - gender neutral
Assault with intent to commit sexual violation
S129(2) CA 61
- with intent to commit sexual violation
- assaults
- any person
With intent to commit sexual violation:
R v cox: intent can be shown from words and actions at the time of, immediately before/after the incident and the surrounding circumstances
Intent to do a deliberate act or produce a specific result.
Sexual violation - rape/ULSC
Penetration of the genitalia by a penis
Introduction to the genitalia or anus by a part of another’s body, object, mouth
Assaults:
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.
Any person
JN/CE gender neutral
Indecent assault
S135 Crimes Act 1961
- a person
- indecently assaults
- a person
A person
Gender neutral JN/CE
Indecently assaults
Indecent - an act accompanied by circumstances of indecency
Assault the act of applying for or attempting to apply force to the person of another.
R v LEESON - the definition of assault is an assault accompanied by circumstances of indecency
R VDUNN - indecency must be judged in light of time/place/circumstances. It must be more than trifling and be sufficient to warrant the sanction of law
R V COURT - conduct right thinking people would find an affront to the sexual modesty of the complainant
CROWN must prove -
- the defendant intended to assault the complainant
- That the circumstances accompanying the assault were indecent
- that the defendant intended the conduct that a reasonable person would consider indecent.
A person-
JN/CE GN
Incest
S130(1) CA 61
- a person
- has sexual connection
- with a parent, child, sibling or half sibling or grandparent
- and the person charged knew of the relationship
A person-
JN/CE GN
- has sexual connection
Introduction into the genitalia or anus by a part of another’s body, object, mouth excl legitimate medical exams
Penetration - affected by the slightest degree
Genitalia - R v kōrekohe - Genitalia - reproductive organ internal and external including the vulva and labia both internal and external at the opening of the vagina
Consent
R v cox - full, voluntary, free and informed. Freely and voluntary given by a person to for rational judgement
R v Korekohe - Consent freely given rather than a submission to something unwanted
GUTUAMA - no reasonable person would think there was consent
With parent/sibling/grandparent/half sibling
And the person knew of that relationship
Sexual conduct with a dependant family member
S131(1)
- a person
- has sexual connection
- with a dependant family member
- over the age of 16
A person-
JN/CE GN
Has sexual connection-
Introduction into the genitalia or anus by a part of another’s body/object or mouth.
Penetration
Affected by the slightest degree
Genitalia
R v korekohe - reproductive organ internal and external including the vulva and labia both internal and external at the opening of the vagina
Consent
R v cox - full, voluntary free and informed. Freely given by a person to form rational judgement
R v korekohe - consent freely given rather than submission or something unwanted or unavoidable
GUTUAMA - no reasonable person would think there was consent.
With a dependant family member-
S131A - demonstrate the nature of the relationship i.e how they meet the criteria of a dependant family member
Under the age of 18 - victim aged 16-17 yrs
R v forest and forest - best evidence national adduce age.
Do adoptive parents count as incest?
Yes - both the birth parents and adoptive parents are considered “parents” under (130(1) CA 61. In cases where only one spouse consented to the adoption only the consenting spouse is liable for incest as the other is technically not an adoptive parent. However they may be liable for s131 sexual conduct with dependant family member
Defence under 134A
Provides defences to defendants for offences against s134CA 61 sexual conduct with a young person under 16
- they have taken reasonable steps to confirm the person is of, or above 16
- They have reasonable grounds to believe that the person is of, or above 16 in the circumstances at the time
- The person consents to the act
Sexual conduct with children and young people outside NZ
S144A CA Sexual conduct with children and young people outside NZ
Everyone commits an offence who, being a New Zealand citizen or resident, commits an act outside New Zealand, which applies to s132(1),(2),(3) or s134(1),(2),(3).
Consent 128A
Consent invalid if:]
Mistaken Identity
Impairment - intellectuals
Nature of the act
Impairment - drugs/alcohol
Force/fear used to get consent
Asleep or unconscious
Protest or resistance
Victims of sexual offending
Evidence regulations for video recording
Investigation of adult sexual assault
Investigation of matters involving sexual or physical abuse where the complainant is a child
Dependant - defined
Cannot be immediate family members so,
Step parent - includes former step parent
Foster parent - includes former foster parent
Spouse or defacto partner of above
Uncle
Aunty
Guardian
AND has any power or authority over the young person (16-18)
S134(4)
No person can be convicted of a charge under this section if he or she was married to the young person concerned at the time of the sexual connection or indecent act concerned
R v Harper - attemp
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
Section 144A Crimes Act 1961
Sexual conduct with children and young people outside NZ
Everyone commits an offence who, being a New Zealand citizen or resident, commits an act outside New Zealand, which applies to s132(1),(2),(3) or s134(1),(2),(3).
Section 129(1) Crimes Act 1961
Attempted Sexual Violation
Everyone who attempts to commit sexual violation is liable to imprisonment for a term not exceeding 10 years.
R v Harpur – 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
S138 Crimes Act 1961
Sexual Exploitation of person with significant impairment
Everyone is liable to imprisonment for a term not exceeding 10 years who has exploitative sexual connection with a person with a significant impairment.
A person has exploitative sexual connection with a person with a significant impairment person if he or she has sexual connection with the impaired person knowing that the impaired person is a person with a significant impairment; and has obtained the impaired person’s acquiescence in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment.
Section 195A Crimes Act 1961
Failure to protect a child or vulnerable adult
A member of a household, or a staff member where the victim resides, is liable to imprisonment for a term not exceeding 10 years who, has frequent contact with a child or vulnerable adult and knows that the victim is at risk of death, grievous bodily harm, or sexual assault as the result of an unlawful act by another person; or fails to omits a legal duty of care expected and fails to take reasonable steps to protect the victim from that risk.
Section 44 EA 2006
Evidence of Sexual experience or disposition
44(1) In a sexual case, no evidence can be given and no question can be put to a witness that relates to
(a) the sexual experience of the complainant with the defendant, except to establish that the sexual connection occurred.
(b) the sexual experience of the complainant with any person other than the defendant
(c) the sexual disposition of the complainant.
44(2) The Judge must not grant permission under subsection (1) to bring the evidence or ask the question unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, that it would be contrary to the interests of justice to exclude it
44(3) The permission of the Judge is not required to rebut or contradict evidence permitted.
What are the statutory defences for sexual conduct with a young person
- the person charged had shown they took reasonable steps to establish the young person was aged over 16 and
- the person charged believed at the time that the young person was 16 and over
- the young person consented to the sexual connection
Definition of consent
A persons conscious and voluntary agreement to do something proposed or desired by another
What must the crown prove for 129(2) assault with in intent to commit sexual violation
S/S - no O
assaulted the victim
Intended to commit sexual violation
What does s128B outline
S128B outlines the punishment for sexual violation.
- max 20 years
- imprisonment should always be imposed on conviction unless there a special circumstances
Under s103(3) evidence act:
Direction for witness to give evidence in an alternative way may be made on grounds of:
- age and maturity
-trauma
- physical/intellectual/psychiatric impairment
- fear or intimidation
- cultural background
- nature of the evidence the witness is to give
- relationship of the witness to any part of the proceedings
- absence or likely absence from New Zealand
Under regulation 28
Prosecutor is to give transcript to defence after pleads not guilty
- the prosecutor must ensure,
- working copy of transcript is given to defendant or lawyer as soon as practicable after the defendant has plead not guilty
- is to be prepare by Police
- the court may adjourn the hearing to allow defendant further time to consider the transcript
How may a witness give evidence
- while in the courtroom but unable to see the defendant or some other person (screen)
-From appropriate place outside the courtroom either in NZ or elseware (cctv - by video recording made before the hearing
List the things you should remind a victim before a medical exam to preserve trace evidence
- not to eat or drink
- not to use the toilet and if they have to to collect urine sample
Not to shower or wash - not to change clothes
- no washing hands or biting nails
What must you explain to a sexual assault victim before a medical exam
- the exam will be conducted by a medical forensic practitioner specially trained in examining victims of sexual assault
- the benefits of doing the full
Medical exam include: - the potential benefit to their physical/mental/sexual health
- how the examination can help
police obtain evidence to apprehend the offender - expected time for the examination and if appropriate the possible outcomes of the exam
Ask the victim if they have any concerns about gender of the practitioner conducting the exam and advise you will do your best to accommodate their wishes. Most ASA VICTIMS see gender. As an issue and prefer female
What does CALMTEA stand for
-Conduct - your dealing with a sensitive matter
- Accept what the victim is telling you
- Listen to what they tell you give them an opportunity to say in their words what happened
-Medical attention establish if they need
- Treat courteously
- Explain the process
- advise of local counselling services available
List four responsibilities to victims and their rights
- all contacts must be recorded
- victims must be given information about the progress of their investigation within 21 days
- vicitm S 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 offender is arrested and charged, Police must deter use whether it is a s29 offence. If so, the vicitm must be informed of their right to register on the VNR
- 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
Harming (physically, emotionally, sexually), ill treatment, abuse, neglect, or deprivation of any child or young person
Child centred time frames
These are timeframes that are relevant to the child’s age and cognitive development. The younger the child, the more vulnerable they are and therefore 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.
3 areas to consider when determining whether physical abuse is serious and therefore meets the threshold for a referral as a CPP case under protocol
- the action of the abuse
- the injury inflicted and
- the circumstances
What must you explain to the victim about a forensic medical examination
- the examination will be conducted by a medical forensic practitioner, specifically trained in examining victim’s of sexual assault.
- the benefits of a full medical forensic examination (potential well being benefits to sexual, physical or mental health and how the examination can help police obtain evidence to apprehend the offender)
- the expected time frame for the examination and if appropriate, the possible outcomes of the examination
S103(3) evidence act 06 - grounds for giving evidence in an alternative way
- age/maturity
- trauma suffered
- relationship to the proceedings
- nature of the evidence expected to give
- fear or intimidation
- physical/intellectual/psychological/psychiatric impairment of the witness
- absence or likely absence from NZ
- linguistic/cultural background or religious beliefs of the witness
- any other grounds likely to promote the act
Under regulation 28 of evidence regulations 07…
Prosecutor to give transcript to defence after defendant pleads NG
It’s the responsibility of the O/C case to ensure the transcript is prepared, including all noticeable non-verbal communication, and is accurate.
Statutory defence for sexual conduct with a young person 134A
-The person charged can show they took reasonable steps to establish the young person was over 16
-they believed on reasonable grounds that the young person was aged 16 or over
- and the young person consented
Defence under 134(4)
Married to the young person
Two elements to be proved in charge of assault with intent to commit sexual violation
Assaulted the vicitm
Intended to commit sexual violation
129A - sexual conduct with consent induced by certain threats - what are the threats?
- a threat that the person making the threat or Some other person will commit an offence punishable by imprisonment (but does not involve the actual or threatened application of force
-and - threat to make disclosure or accusations whether true or false about misconduct by any person whether dead or alive that is likely to seriously damage the reputation of the person whom the threat is made against
- and
- a threat that the person making the threat will make improper use, to the detriment of the person consenting, of a power or authority arising out of
- an occupational or vocational position held or commercial relationship existing
S 44 EA 06
- No question may be asked or any evidence given in relation to the sexual history of the complainant with the defendant except to establish that sexual connection occurred
- The sexual history with any other person
- the sexual disposition of the complainant
Unless permission is granted by the judge.
Judge may only grant permission if the question asked, evidence given is of such direct relevance to the proceedings it would be contrary to the interests of justice not to include it.
S87 EA 06
Privacy as to witnesses precise address
Precise particulars of a witness address may not be, without the permission of the judge be subject to any question or evidence given or included in any statement or remark without the permission of the judge.
S88 EA 06
Complainant occupation
121 EA 06
Evidence does not have to be corroborated except with respect to the offences of
Purgery
False oath
False statement
Treason
Judge does not need to warn the jury that it is dangerous to act on uncorroborated evidence or to give warning to the same or similar effect
131B - when is meeting a young person following sexual grooming complete?
- ## Having met or communicated with a young person on a previous occasion
- intentionally meets the young person
- travels with the intent of meeting the young person
- arranges or persuades the y/p to travel with the intention of meeting him/her
And at the time has the necessary intent under 98AA ca 61
