Case Law and Definitions

Question 1

Rape

Answer 1

Person A rapes person B if Person A has sexual connection with person B, effected by the penetration of person B’s genitalia by Person A’s penis, -

(a) without person B’s consent to the connection and;
(b) without believing on reasonable grounds that person B consents to the connection.

Question 2

Sexual Connection

Answer 2

Sexual connection means—
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of—

(i) a part of the body of another person; or
(ii) an object held or manipulated by another person; or

(b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)

Question 3

Unlawful Sexual Connection

Answer 3

Person A has sexual connection with person B

(a) without person B’s consent to the connection and;
(b) without believing on reasonable grounds that person B consents to the connection.

Question 4

Introduction / Penetration

Answer 4

Introduction and penetration have the same meaning. Introduction to the slightest degree is enough to effect a connection.

Question 5

Proving penetration

Answer 5

Proof of penetration may be established by:

• Complainant’s evidence
• Medical examination, including physical injuries and DNA evidence
• The defendant’s admissions.

Question 6

Genitalia

Answer 6

Genitalia includes a surgically constructed or reconstructed organ, analogous to naturally occurring male or female genitalia

Question 7

R v Koroheke

Genitalia

Answer 7

The genitalia comprise the reproduction organs, interior and exterior … they include the vulva [and] the labia, both interior and exterior at the opening of the vagina.

Question 8

Penis

Answer 8

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).

Question 9

Consent

Answer 9

Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.

Question 10

R v Cox

Consent

Answer 10

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

Question 11

R v Koroheke

Consent

Answer 11

It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.

Question 12

R v Adams

Answer 12

Consent and the Belief in consent is to be considered at the time the act took place

Question 13

R v Gutuama

Answer 13

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.

Question 14

R v Herbert

Answer 14

Reluctant consent

The Court held that a true consent may be given reluctantly or hesitantly and may be regretted afterwards, but if the consent is given even in such a manner, provided it is without fear of the application of force or the result of actual or threatened force, then the act of sexual connection would not be rape.

Question 15

Matters that do not constitute consent

Answer 15

CA61; S128A

PFAAIMM

A person does not consent to sexual activity:

• Lack of Protest or Resistance
• Allows dues to Force, Fear, Threat
• Asleep or Unconscious
• Affected by Alcohol or Drugs
• Effected by Intellectual or Physical Disability
• Mistaken as to ID of offender
• Mistaken as to the nature and quality of Act

Question 16

Crown must Prove (Consent)

Answer 16

Subjective
The Complainant was not consenting

Subjective
The Defendant did not believe the complainant was consenting

Objective
No person would have a reasonable belief that the complainant was consenting

Question 17

Assault

Answer 17

Assault means 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, the present ability to effect his purpose.

Question 18

Intent

Answer 18

Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Question 19

R v Collister

Answer 19

Circumstantial evidence from which an offender’s intent may be inferred can include:

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

Question 20

Intent to commit an offence

Answer 20

The Crown must prove that the defendant intended to commit the full act of sexual violation, and acted as he did for the purpose of achieving that aim.

Question 21

Attempts

Answer 21

S72 Attempts

(1) Intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object.

(whether in the circumstances it was possible to commit the offence or not)

More than mere preparation

Proximately connected with the intended offence

Question 22

R v Harpur

Answer 22

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”.

Question 22

Indecent Act Legislation

Answer 22

For the purposes of this Act, one person does an indecent act on another person whether he or she—

(a) does an indecent act with or on the other person; or
(b) induces or permits the other person to do an indecent act with or on him or her.

Question 23

R v Cox

Consent Child

Answer 23

“exceptional and rare circumstances” that a child under 12 could give legal consent.

Question 24

R v Cox Belief in Consent Child

Answer 24

Save in exceptional and rare circumstances … even when she indicates an agreement to the act occurring … no reasonable adult would have grounds for believing that a ten or eleven year old girl has the experience or maturity to understand the nature and significance of the act.

Question 25

Child

Answer 25

child means a person under the age of 12 years

Question 26

R v Court

Answer 26

Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant]”.

Question 27

R v Dunn

Answer 27

Indecency must be judged in light of the time, place and circumstances. It must be something more than trifling, and be sufficient to “warrant the sanction of the law.”

Question 28

R v Leeson

Answer 28

Indecent Assault is an assault accompanied with circumstances of Indeceny

Question 29

R v Forrest and Forrest

Answer 29

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”

Question 30

S132(4) and (5) Not Defences

Answer 30

(4) - It is not a defence to a charge under this section that the person charged, believed that the child was of or over the age of 12 years. (5) - It is not a defence to a charge under this section that the child consented.

Question 31

No Presumption because of Age

Answer 31

S127 CA61 There is no presumption of law that a person is incapable of sexual connection because of his or her age.

Question 32

Young Person

Answer 32

young person means a person under the age of 16 years

Question 33

R v Herbert Consent of a young person

Answer 33

Whilst as a matter of common sense, cases will occur where a young person appears to consent but by reason of all the circumstances, including tender years, cannot be taken in fact to have consented, nevertheless in this case the complainant was of a sufficient age for consent to have been reasonably possible.

Question 34

Cannot be convicted S134

Answer 34

S134(4) and (5): (4) If he or she was married to the young person concerned. (5) The young person cannot 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.

Question 35

Statutory Defence Section 134A

Answer 35

S134A: (1) (a) Before the time of the act, 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, he or she believed on reasonable grounds that the young person was of or over the age of 16 years; and (c) The young person consented.

Question 36

Not a defence to Section 134 Charge

Answer 36

(a) it is not a defence to a charge under section 134 that the young person concerned consented; and (b) it is not a defence to a charge under section 134 that the person charged believed that the young person concerned was of or over the age of 16 years.

Question 37

What must the prosecution prove regarding a charge of indecent assault?

Answer 37

- 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. Consent - The complainant did not consent to the assault; AND - The defendant did not honestly believe the complainant was consenting

Question 38

R v Norris Defence to Charge Indecent Assault

Answer 38

If a person who is charged with indecent assault is able to establish that they honestly believed that the complainant was consenting, they are entitled to be acquitted even though the grounds of his belief were unreasonable.

Question 39

Legislative Age for Incest

Answer 39

Of or over the age of 16 years

Question 40

Consent Incest

Answer 40

Consent is no defence. The sexual connection in incest is carried out with the consent of both parties. If it is not, then a charge of sexual violation is appropriate.

Question 41

Incest Relationships

Answer 41

Parent and Child Siblings Half Siblings Grandparent and Grandchild Includes Adoptive Parents

Question 42

Not relationship for Incest

Answer 42

Step Parents

Question 43

Knowledge Incest

Answer 43

It is essential that each person charged must know of their relationship before or at the time of the sexual connection. Simester and Brookbanks Knowing or Correctly Believing Crooks Actual Knowledge, more than mere Suspicion

Question 44

Dependant family member defined S131A

Answer 44

(1) For the purposes of section 131, one person is a dependent family member of another person— (a) if the other person has power or 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 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 de facto partner of a person described in subparagraph (i) / (ii) / (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 a 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 member of the other person’s family, and the other person is not a person referred to in paragraph (a), but has— (i) power or authority over him or her; and (ii) a responsibility for, or significant role in, his or her care or upbringing.

Question 45

When is the offence of grooming complete? S131B

Answer 45

Offence complete: When the parties meet, or the defendant travels or makes arrangements to meet the complainant with the relevant intent. Also includes a constable who pretends to be a young person under the age of 16.

Question 46

What is a defence to a charge of S131B - Meeting young person following sexual grooming, etc?

Answer 46

CA61; S131B ss(2): (a) Before the time he or she took the action concerned, he or she had taken reasonable steps to find out whether the young person was of or over the age of 16 years; and (b) At the time he or she took the action concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years.