Short answer Flashcards
What must the crown prove re consent? Case law..
R v Gutuama. Under the objective test the crown must prove that no reasonable person in the accuseds shoes could have thought that the complainant was consenting.
What is R v Cox?
Consent must be full voluntary free and informed, freely and voluntarily given by a person in a position to form a rational judgement.
What is the difference between rape and unlawful sexual connection?
“Rape is the specific form of sexual violation that involves the non consensual penetration of the complainants genitalia by the offenders penis”
“Unlawful sexual connection has a wider meaning, and includes any form of non consensual penetration or oral connection with a persons genitalia or anus”.
What must the crown prove in relation to section 129(1) - attempted sexual violation?
Beyond reasonable doubt that the defendant:
- Intended to have sexual connection with the complainant AND
- The complainant did not consent to the intended sexual connection AND
- Did not believe on reasonable grounds that the complainant was consenting.
Must also prove that the defendant acted as he did for the purpose of achieving his intended aim.
What is R v Harpur
(Man describing explicit acts he wanted to perform on ladies 4y/o niece .. Arranged to meet for purpose)
RV Harpur-
The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops… The defendants conduct may be considered in its entirety. Considering how much remains to be done … Is always relevant, though not determinative.
Describe the case law that covers the claims of a defendant that a child of 12 years or younger was consenting - exceptional and rare circumstances..
R v Cox
Although we do not exclude the possibility that a child of 10 or 11 may be able to give a full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare.
No reasonable adult would have grounds for believing that a 10 or 11 year old has the experience or maturity to understand the nature of the act.
- Consent is no defence to a charge of sexual conduct with a child under 12.
How do the prosecution prove a child’s age?
Using the best evidence available, in practise generally involves the complainants birth cert. in conjunction with independent evidence that IDs the complainant as the person named in the cert.
What is R v Forrest and Forrest?
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.
What is the definition of an indecent act?
An act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values
Explain section 134A in relation to defence to the charge of 134 Sexual Conduct with a Young Person under 16
It is a defence to a charge of 134 if the defendant proves that:
a) before the time of the act concerned, he or she had taken reasonable steps to find out whether the young person concerned was of or over the age of 16 years, AND
b) at the time of the act concerned, he or I she believed on reasonable grounds that the young person was of or over the age of 16 years, AND
c) the young person consented.
Explain R v Leeson
The definition of “indecent assault” is an assault accompanied with circumstances of indecency.
What must the prosecution prove in cases of indecent assault s 135?
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.
What kinds of threats are referred to in relation to s129A CA61, sexual conduct with consent induced by certain threats?
5(a) a threat that the person making the threat or some other person 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
What is the difference between sections 128 (sexual violation by rape) and section 129A (sexual conduct with consent induced by certain threats)?
The offence includes inducing someone to commit sexual connection in response to an implied or explicit threat that does not involve force, the section uses the same definitions of consent and sexual connection as s128
What must the crown prove in relation to incest s130?
That each pretty charged knew of their relationship before or at the time of the sexual connection.
What is the definition of a ‘family member’ in relation to s131 sexual conduct with dependant family member?
(A) if the person has power or authority over him/her and is
(i) his or her parent/step-parent, foster parent, guardian, uncle or aunt, or;
(ii) a parent, step parent or 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 the above.
(b) if they are members of the same family, whanau or other culturally recognised family group and is responsible for or has a significant role in his or her care or upbringing; or
(c) if he or she is living with the other person as a member of the other persons family, and the other person is not a person referred to in paragraph (a) but is responsible for or has a significant role in his or her care or upbringing.
Explain the ingredients of the offence of 131B CA61, meeting young person following sexual grooming..
(1) every person is liable for 7years if -
(a) having met or communicated with a person under the age of 16 yrs on an earlier occasion, he or she takes one of the following actions..
(i) intentionally meets the young person:
(ii) travels with the intention of meeting the young person:
(iii) arranges for or persuades the young person to travel with the intention of meeting him or her
(b) with the intent to commit an offence against this part or other of section 98AA(1)
When does someone commit the offence of s138 - sexual exploitation of person with significant impairment..?
(3)
(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.
What is the act, section an penalty for indecency with an animal?
Section 144 crimes act 1961, 3 years imprisonment
Explain section 66 of the evidence act in relation to evidence of sexual experience of complainants? No evidence can be given and no question can be put to a witness ….
- relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the judge
- That relates directly or indirectly to the reputation of the complainant in sexual matters
Explain section 87 of the evidence act 2006 in relation to privacy as to a witnesses precise address
- In any proceeding the precise particulars of a witnesses address (ie street and number) may not without permission of the judge be:
a) the subject of any question to a witness or included in any evidence given; or
b) included in any statement or remark made by a witness, lawyer, officer of the court or any other person
2. The Judge must not grant permission under subsection (1) unless satisfied that the question to be put, the evidence to be given, or the statement or remark to be made, is of sufficient direct relevance to the facts in issue that to exclude it would be contrary to the interests of justice. An application for permission under subsection (1) may be made before or after the commencement of any hearing, and is, where practicable, to be made and dealt with in chambers. Nothing in subsection (1) applies in a criminal proceeding if it is necessary to disclose the particulars in the charge in order to ensure that the defendant is fully and fairly informed of the charge.
What does section 88 of the evidence act protect in relation to a witness?
a complainant from having questions put to them or to a witness about the complainant’s occupation, or having evidence given, or statements/remarks made about the complainant’s occupation.
Does a victims account in a sexual complaint need to be corroborated? What section of the evidence act supports answer?
No it doesn’t, Section 121 (Corroboration) of the Evidence Act 2006 provides that, in any criminal proceeding, the complainant’s evidence does not have to be corroborated.