Short Answer Questions Flashcards
What is the objective test for Indecency?
Indecency must be judged in light of the time, place & circumstances. It must be something more than trifling, and be sufficient to warrant the sanction of the law.
(R v Dunn)
What makes sexual connection unlawful?
The Crown must prove that:
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 a belief were not reasonable.
Explain Sec.87 Evidence Act 2006
It protects a witness from having to state their address & having questions put to them about that information. This includes not only the name & number of the street, but also the name of the town or community the witness lived in.
May be disclosed if judge determines directly relevant to the facts in issue & that to exclude them would be contrary to the interest of justice.
Explain Sec.88 Evidence Act 2006
No questions put to complainant or witness about the complainant’s occupation, or having evidence given, or statements/remarks made about the complainant’s occupation.
However, an application can be made to the judge to disclose this information.
Proof of Penetration
May be established by:
- the complainant’s evidence.
- medical examination (injuries, DNA evidence).
- the defendant’s admissions.
Sexual Violation is the act of a person who…..
1(a) Rapes another person; or
(b) Has unlawful sexual connection with another person
Explain Sec.127 C.A.61
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
This provision means that any person of any age is capable, in a legal sense of being involved in sexual connection.
Therefore it would NOT be a defence to a sex-related charge to say that either of the parties was too young or too old to have sexual connection.
List the two main forms of sexual violation.
Rape & Unlawful Sexual Connection.
Discuss the two elements that need to be proved in a charge of Assault with Intent to commit Sexual Violation Sec.129 C.A.61
That the offender
- assaulted the victim; &
- intended to commit sexual violation
What is the definition of Consent?
Consent is a person’s conscious & voluntary agreement to something desired or proposed by another.
Discuss the penalty provisions for Sexual Violation as set out in Sec.128B C.A.61
It outlines that the punishment for sexual violation is imprisonment for a term not exceeding 20 years, & imprisonment should always be imposed on conviction unless there are special circumstances that justify a departure for the rule.
Explain Sec.134A C.A.61
Defence to charge under Sec.134 C.A.61
It is a defence to a charge under Section 134 if the defendant proves -
(a) before the time of the act they took reasonable steps to ascertain the Y/P was of or over the age of 16, AND
(b) at the time of the act they believed on reasonable grounds the Y/P was of or over the age of 16, AND
(c) the Y/P consented.
Explain Sec.134 C.A.61 in relation to two persons under the age of 16 years.
Where both parties are aged under 16, they both commit the offence. However, if one party is 15 & the other is 16, only the 16 year old can be charged (Sec.134(5))
Can a young person whom an offence against Sec.134 C.A.61 has been committed, be charged as a party to the offence, if the person who committed the offence was of or over the age of 16 years when the offence was committed?
No they can not be charged as party to the offence (Sec.134(5) C.A.61)
What must the Crown prove in an Indecent Assault case?
- 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.
To be guilty of an attempt to commit an offence a person must:
- Intend to commit the offence, AND
- Take a real & substantial step towards achieving that aim.
What is essential for a charge of Incest?
Two persons whose relationship is that of parent & child, siblings, half-siblings, or grandparent & grandchild; and
That each person charged knew of their relationship before or at the time of sexual connection.
List three grounds on which a direction can be made under Sec.103(3) Evidence Act 2006 in regards to a witness giving evidence in an alternative way
- the age or maturity of the witness
- the physical, intellectual, psychological, or psychiatric impairment of the witness
- the trauma suffered by the witness
- the witness’s fear of intimidation
- the linguistic or cultural background or religious beliefs of the witness
- the nature of the proceeding
- the nature of the evidence that the witness is expected to give
- the relationship of the witness to any party to the proceeding
- the absence or likely absence of the witness from NZ
- any other ground likely to promote the purpose of the Act
Explain Sec.129A
This section creates an offence of INDUCING someone to commit sexual connection to an IMPLIED or EXPLICIT threat that DOES NOT INVOLVE FORCE.
Sec.138 Sexual Exploitation of person with significant impairment.
Explain Significant Impairment
Intellectual, Mental, Physical Condition or Impairment (IMPCI) or combination of 2 or more IMPCI that affects a person to such an extent that it significantly impairs the person’s capacity to -
(a) understand the nature of the sexual conduct; or
(b) understand the nature of decisions about sexual conduct; or
(c) foresee the consequences of decisions about sexual conduct; or
(d) communicate decisions about sexual conduct
Under Sec.131B C.A.61
When is the offence complete?
Having met or communicated on an earlier occasion:
- intentionally meets the young person; or
- travels with the intention of meeting the young person; or
- arranges for or persuades the young person to travel with the intention of meeting him/her; and
At time of taking the action he/she intends to commit an offence against this Part or of 98AA(1)
Explain Sec.44 Evidence Act 2006
No evidence or questions be put to a witness relating to the sexual experience of the complainant (other than with the defendant) or the reputation of the complainant in sexual matters.
Except with permission of the Judge.
Sec.129(1) C.A.61
Attempted Sexual Violation
What must be proved?
- defendant intended to have sexual connection with the complainant, and
- the complainant did not consent to the intended sexual connection, and
- defendant did not believe on reasonable grounds that the complainant was consenting
Explain Sec.144A C.A.61
This section allows for the prosecution of a NZ citizen who commits an offence under sec132 or sec134, and sec23(1) Prostitution Reform Act pursuant to sec144A if the act was committed outside of NZ.
Sec. 35(2) Evidence Act 2006
Makes a previous consistent statement admissible to the extent that if necessary to respond to a challenge to a witness’s veracity or accuracy, the challenge may be based on:
- a previous inconsistent statement of the witness; or
- a claim that the witness recently invented evidence.
