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CIB Modules > Sex offences > Flashcards

Sex offences Flashcards

1
Q

s138(3) Crimes Act 1961 - sexual exploitation of significantly impaired person

A

Knowing the person has the significant impairment and taking advantage of it to get participation in the act.

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2
Q

Penetration

A

Affected by the slightest degree.
May be established by:
- The complainant’s evidence
- Medical examination, including physical injuries and DNA evidence.
- The defendant’s admissions

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3
Q

The Crown must prove beyond reasonable doubt that… (rape/unlawful sexual connection)

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 the offender did believe the complainant was consenting, the grounds for such a belief were not reasonable
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4
Q

Consent

A

A person’s conscious and voluntary agreement to something desired or proposed by another

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5
Q

s128A Crimes Act 1961 (consent invalid)

A

A person does not consent if:
Mistaken ID
Impairment (drugs/alcohol) so affected by
Nature and quality (mistaken as to)
Impairment (intellectual/physical/mental) of such nature and degree
Force, threat, fear
Asleep or unconscious
Protest or resistance (just because does not offer)

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6
Q

s134A defence

A
  • Took reasonable steps to find out 16+ AND
  • Believed on reasonable grounds 16+ AND
  • YP consented
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7
Q

To be guilty of an attempt to commit an offence…

A

A person must:
- Intend to commit the offence AND
- Take a real and substantive step towards achieving that aim AND
- Be sufficiently proximate

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8
Q

Intent - deliberate act

A

Means that act or omission must be done deliberately. The act or omission must be more that involuntary or accidental.

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9
Q

Intent - to produce a result

A

Intent to produce a specific aim, object or purpose

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10
Q

R v Collister - Circumstantial evidence from which intent can be inferred can include:

A
  • The offender’s actions and words before, during and after the event
  • The surrounding circumstances
  • The nature of the act itself
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11
Q

Crown must prove with attempted sexual violation that…

A

The defendant:
- Intended to have sexual connection with the complainant AND
- The complainant did not consent to the intended SC AND
- Did not believe on reasonable grounds that they were consenting

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12
Q

Assault

A

The act of 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, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose.

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13
Q

Assault with intent to commit sexual violation can arise from two different intentions…

A

The offender may assault the victim:
- In the hope that the complainant will then change their mind and consent to the act OR (assault or indecent assault)
- Intending to commit rape or sexual connection regardless of whether the complainant changes their mind (attempted SV or assault with intent to commit SV)

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14
Q

Rape

A

Penetration of a persons genitalia by ones penis (inc surgically reconstructed), without consent, and without believing on reasonable grounds there was consent

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15
Q

Sexual Connection

A

Introduction into genitalia or anus by part of another’s body, object or mouth (exl legit medical exam)

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16
Q

Genitalia

A

Penis and testicles of a male, and vagina and vulva of female. Includes surgically constructed or reconstructed.

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17
Q

s132(4) and (5) - Sexual conduct with a child under 12 - not defences….

A

(4) It is not a defence that the person charged believed the child was of or over 12
(5) It is not a defence that the child consented

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18
Q

s134A Dependent family member

A

If the other person has power or authority over them and is:
- Parent, step-parent, foster parent, guardian, uncle or aunt of
- A parent, step-parent or foster parent of above described person
- A child of parent or step-parent
- The spouse or de facto partner of persons above
- If they are living with them and has power or authority or responsibility for or significant role in care or upbringing

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19
Q

s131B offence completed when…

A

Having met with or communicated with person under 16 on an earlier occasion, takes one of the following actions:
- Intentionally meets the YP
- Travels with intention of meeting YP
- Arranges for or persuades the YP with intention of meeting them AND
At the time of taking the action, intends:
- to sell/buy/barter/rent/hire/enters into dealing under 18 for sexual exploitation
- detains/confines/imprisons or carries away under 18 for sexual exploitation
- removes/receives/transports/imports or brings to a place under 18 for sexual exploitation
- induces under 18 to sell/rent/give themself for sexual exploitation OR
- Under 18 should do on them an act which in NZ would be an offence.

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20
Q

s131B(2) defence

A

Person proves that took reasonable steps to find out if YP was of or over 16 and believed on reasonable grounds that of or over 16

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21
Q

s138(3) - Sexual exploitation of person with significant impairment

A

Exploitative sexual connection with an impaired person if
- Has sexual connection with impaired person knowing they have significant impairment AND
- Has obtained the impaired persons participation by taking advantage of the impairment

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22
Q

Sexual violation

A

A person rapes or has unlawful sexual connection with another person

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23
Q

R v Koroheke (genitalia)

A

The genitalia comprise the reproductive organs, interior and exterior, including the vulva and labia both internal and external at the opening of the vagina.

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24
Q

R v Cox (consent)

A

Consent is full, voluntary, free and informed freely and voluntarily given by a person in a position to form rational judgement.

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25
Q

R v Koroheke (consent)

A

Consent is freely given, rather than submission to something unwanted but unavoidable

26
Q

R v Gutuama (consent)

A

No reasonable person would think there was consent

27
Q

Defences to a s134 charge

A

s134A - consent + offender must take reasonable steps to find out age AND believe on RG at the time that the person was 16+
s134(4) - married to YP at the time.

28
Q

Indecent Act

A

s2 CA 1961
- Does an indecent act on another
- Permits person to do indecent act on them

29
Q

R v Court

A

Conduct that right thinking people will consider an affront to the sexual modesty of the complainant

30
Q

R v Leeson

A

Indecent assault = assault + indecent circumstances

31
Q

R v Dunn

A

Indecency judged by time/place/circumstances

32
Q

Crown must prove in relation to indecent assault

A
  • The defendant intended to assault the complainant
  • The circumstances accompanying the assault were indecent
  • The defendant intended the conduct that a reasonable person would consider indecent
33
Q

Defences for charge of sexual conduct with YP under 16

A

s134A - consent + offender must take reasonable steps to find out age AND believe on reasonable grounds that over 16
s134(4) - married at the time

34
Q

Indecent act (s2)

A

Does an indecent act with or on the other person
Induces or permits the other person to do an indecent act

35
Q

Actions taken to assist victim to recover

A
  • Conduct dealings in sensitive manner
  • Accept they are telling the truth (unless evidence to the contrary)
  • Listen to what they tell you (own words or vent)
  • Medical attention
  • Treat them courteously
  • Explain the process and why
  • Advise of local counselling services
36
Q

Child centered timeframes

A

Timeframes that are relevant to child’s age and cognitive development.

37
Q

Child abuse - OT Act 1989

A

The harming (whether physically/emotionally/sexually), ill-treatment, abuse, neglect, or deprivation of any child or young person.

38
Q

Areas to consider when determining seriousness of physical abuse

A
  • Action of abuse
  • Injury inflicted
  • Circumstances
39
Q

Obligations to victims

A

To provide information about services available, investigation and relating proceedings.
- obligations must be met and contact recorded.
- investigation progress update within 21 days
- kept updated and informed of outcome of investigation - no lines or no charges
- s29 offence? ASAP
- case closure and outcome. property returned

40
Q

Explaining medical forensic exam

A
  • Exam conducted by a medical forensic practitioner specially trained in sexual assault
  • Benefits including sexual/physical/mental health, obtain evidence to ID offender
  • expected time and possible outcomes
  • ask about concerns about gender of practitioner and will attempt to accomodate
41
Q

Victims should refrain from ___ until after medical exam

A
  • Eating or drinking
  • Going to the toilet (or capture urine and don’t wipe)
  • Washing and showering
  • Washing hands
  • Biting fingernails
  • Changing clothes (consider sterile sheet)
  • Smoking
  • Brushing or combing hair
  • Brushing teeth or rinsing mouth
42
Q

Reg 28 - Evidence Regulations Act 2007

A

Must ensure a typed transcript is given to defendant or lawyer as soon as practicable after not guilty plea

43
Q

Advantages of visually recorded interviews

A
  • Greater quality and quantity of information obtained
  • Minimising witness trauma (interview played as evidence in chief)
  • Reducing contamination by interviewer
44
Q

s107 Evidence Act 2006

A

Alternative ways of giving evidence by a child witness
- In courtroom but unable to see defendant or other (screen)
- From place outside courtroom in NZ or other (CCTV)
- By video record made before hearing (DVD interview)

45
Q

s103 Evidence Act 2006

A

Directions about alternative ways of giving evidence.
May me made on grounds of:
- Age or maturity
- Physical, intellectual, psychological, psychiatric condition
- Trauma suffered
- Fear of intimidation
- Linguistic or cultural background or religious beliefs
- Nature of the proceeding
- Nature of evidence expected to give
- Relationship of witness to any party in proceeding
- The absence or likely absence of witness from NZ

46
Q

s105 Evidence Act 2006

A

Alternative ways of giving evidence
- In courtroom but unable to see defendant or other (screen)
- From place outside courtroom in NZ or other (CCTV)
- By video record made before hearing (DVD interview)

47
Q

s121 Evidence Act 2006

A

Complainants evidence does not have to be corroborated

48
Q

s35 Evidence Act 2006

A

Previous consistent statements rule - usually rebuttal evidence

49
Q

s44 Evidence Act 2006

A

Evidence of sexual experience of complainants in sexual cases
- No evidence can be given/questions put to relating to sexual experience/reputation of the complainant with anyone other than defendant (unless permission granted by judge)

50
Q

s87 Evidence Act 2006

A

Privacy as to witness’s precise address.
Must not be subject of any question or statement made.
Includes number/name of street and suburb.

51
Q

s88 Evidence Act 2006

A

Restriction on disclosure of complainant’s occupation in sexual cases.

52
Q

R v Forrest and Forrest

A

Best possible evidence to prove age

53
Q

R v Cox

A

Consent is full, voluntary, free and informed. Freely and voluntarily given by a person in a position to form rational judgement.

54
Q

R v Koroheke (consent)

A

Consent freely given, rather than submission to something unwanted by unavoidable

55
Q

R v Gutuama

A

No reasonable person would think consent

56
Q

R v Harpur

A

An attempt includes an act or omission constituting a substantial step in a course of conduct planned to culminate in the commission of the crime.

… independent acts, when viewed in isolation can be construed as prepatory, when they are viewed collectively, they can can take on a different context and therefore amount to a criminal attempt.

57
Q

s131B(2) defence

A

Took reasonable steps to find out the YP was 16+ AND believed on reasonable grounds that 16+

58
Q

R v Collister

A

Intent can be inferred from actions or words before/during/after, surrounding circumstances, and nature of the act

59
Q

138(6)

A

Intellectual/mental/physical condition or impairment that affects capacity to:
- Understand the nature of sexual conduct or decisions about it
- Foresee consequences
- Communicate decisions

60
Q

138(6)

A

Intellectual/mental/physical condition or impairment that affects capacity to:
- Understand the nature of sexual conduct or decisions about it
- Foresee consequences
- Communicate decisions

61
Q

s132 non-defences

A

132(4) - not a defence that they believed the child was over 12
132(5) - consent is not a defence

CIB Modules (7 decks)

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