Defintions and Questions

Question 1

Sexual violation

Answer 1

Person rapes or has unlawful sexual connection with another person

Question 2

Rape

Answer 2

Penetration of persons genitalia by one’s penis without consent or without believing on reasonable grounds there was consent

Question 3

Penetration

Answer 3

S(2): Affected by the slightest degree

Proved by the complainants statement, medical exam including any injuries and offender admissions

Question 4

Genitalia

Answer 4

The external organs of reproduction for male and female. It is the penis and testicles of a male and the vulva and vagina of a female. Also includes surgically constructed or reconstructed genitalia.

R v Koroheke: reproductive organs internal and external including the vulva and labia both internal and external at the opening of the vagina.

Question 5

Consent

Answer 5

A persons conscious and voluntary agreement to something desired or proposed.

R v Cox: Full, voluntary, free and informed, freely and voluntarily given by a person able to form a rational judgement.

R v Koroheke: Consent freely given, rather than submission to something unwanted or avoidable.

R v Guatama: no reasonable person in the accused’s shoes would think there was consent.

Question 6

What must the crown prove in relation to consent?

Answer 6

• the complainant did not consent
• offender did not believe they consented or
• if they did believe they consented the grounds for such belief are unreasonable

Question 7

S128A Matters not constituting consent

Answer 7

• no protest or resisting
• force or threat of force
• asleep or unconscious
• affected by drugs or alcohol
• affected by intellectual, mental or physical condition or impairment
• mistaken ID
• mistaken about the quality and nature of the act

*applies for sexual connection and indecent assault

Question 8

Unlawful sexual connection

Answer 8

S(2): introduction into genitalia or anus by part of another persons body, object or mouth or the continuation of these connections, unless for genuine medical purposes

Question 9

Assault

Answer 9

S(2): intentionally applying or attempting to apply force to another person, directly or indirectly, or threatening to apply such force

Question 10

Define Intent and support your answer with case law

Answer 10

There are two specific types of intent. There must be an intent to commit the offence and and intent to get the specific result.

R v Collister: Circumstantial evidence may infer offenders intent - actions/words, surrounding circumstances and the nature of the act itself

Question 11

Define Indecent act

Answer 11

Generally accepted to be an act accompanied by circumstances of indecency(conduct directed at a person that is offensive to public moral values)

Does an indecent act on another or permits the person to do indecent act on them

Question 12

R v Court

Answer 12

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

Question 13

R v Dunn

Answer 13

Indecent must be judged in light of the time, place and circumstances

Question 14

R v Leeson

Answer 14

An assault accompanied with circumstances of indecency

Question 15

Sexual conduct with a child - not a defence

Answer 15

S132(4) - not a defence they believed the child was over 12

S132(5) - consent is not a defence

Question 16

S128(4)

Answer 16

No legal defence due to the fact the couple are legally married

Question 17

Punishment for sexual violation

Answer 17

The punishment for sexual violation is imprisonment for a term not exceeding 20 years and imprisonment should always be imposed on conviction unless there are special circumstances that justify a departure from this rule

Question 18

Continuation

Answer 18

The definition is sexual connection includes the continuation where sexual activity is started consensually but consent is later withdrawn. There is an obligation on a person to stop at the point they realise the other person is no longer willing.

Question 19

S127 - age

Answer 19

No presumption because of age - any person of any age is capable. It is not a defender to say either party was too young or too old.

Question 20

Reluctant consent

Answer 20

R v Hubert: true consent may be given reluctantly it hesitantly and may be regretted afterwards, but if given without fear of force then it would not be rape

Question 21

Subjective and objective test for consent

Answer 21

Subjective 1: what was the complainant thinking at the time

Subjective 2: did the defendant believe they were consenting

Objective 1: what would a reasonable person had of believed if they were in the defendants shoes

Question 22

To be guilty of an attempt, a person must…

Answer 22

• intend to commit the offence
• take a real and substantial step towards achieving that aim

Question 23

What must the crown prove for attempted sexual violation?

Answer 23

• intended to have sexual connection with the complainant
• complainant did not consent
• the defendant did not believe on reasonable grounds that the complainant was consenting

Question 24

Under 12 giving consent

Answer 24

Cox v R: we do not exclude the possibility that a child may be able to give consent, the circumstances would have to be exceptional and rare. No adult would have grounds for believing that a child would have the maturity or experience to understand the nature and significance of the act

Question 25

134A: Statutory defence

Answer 25

• they had taken reasonable steps to find out their age and • they believed the person was of age and • the young person consented *it is not a defence to a charge under S134 if the YP consented and not a defence if they believed the person was 16+

Question 26

What must prosecution prove for indecent assault?

Answer 26

• 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 If there an issue with consent is raised, prosecution must also prove: • the complainant did not consent • the defendant did not honestly believe the complainant was consenting *indecent assault cannot be committed accidentally *consent is a defence for an adult, but not for a child or YP

Question 27

What level of belief if required for a defence for indecent assault? Support your answer with case law

Answer 27

An honest belief is sufficient even if not reasonable. R v Court: if the defendant is able to establish that they honestly believed the complainant was consenting they are entitled to be acquitted, even if the grounds were unreasonable

Question 28

Why with most sexual conduct with a child under 12 cases is there usually some degree of consent from the victim?

Answer 28

• grooming • due to young age not able to understand the significance of the act

Question 29

To be guilty of an attempt they must have…

Answer 29

Progressed past the stage of preparation and started a process intended towards the full offence R v Harpur: an attempt includes an act or omission in constituting a substantial step towards the full crime

Question 30

Two reasons why the offender might assault the victim

Answer 30

• hope the complainant will then change their mind and consent to the act or • intend to commit rape/SC regardless of whether the complainant changes their kind *if the offender is only trying to get them to change their mind, they will be liable for assault or indecent assault if applicable. If the assault is preliminary they will be liable for attempted SV or assault with intent to commit SV

Question 31

Not a defence - child under 12

Answer 31

132(4) not a defence if they believed the child was of or over 12 132(5) not a defence if the child consented

Question 32

S129A kinds of threat

Answer 32

• a threat that the person making the threat or some other person will commit an imprisonable offence but does not involve the actual or threatened application of force AND • a threat of accusation or disclosure about misconduct that is likely to damage reputation AND • a threat that the person 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 by the person making the threat or a commercial relationship existing between the person making the threat and the person consenting *this section creates an offence of inducing someone to commit SC in response to an implied threat that does not involve force

Question 33

Why relationship types are included in Incest?

Answer 33

Parent and child (including adoptive parents) Siblings and half siblings Grandparent and grandchild *step parents and step children are not incest - may be liable for S131

Question 34

Who is a dependent family member?

Answer 34

A) Has authority over the person AND • parent, step parent, foster parent, guardian, uncle or aunt or a parent or step/foster parent of these people • a child of the parent or step parent • a spouse or de facto partner of the first bullet point B) If members of the same family AND • is not a person listed above but has responsibility for or significant role in their care or upbringing C) If living with the other person as a member of their family and not referred in A) but has power or authority over them and a responsibility or significant role in their upbringing *aunt/uncle includes half sibling of ones parent *foster/step parent includes former *guardian defined as per the act, includes former guardian

Question 35

What must police prove for SC with a dependent family member?

Answer 35

That the person had authority or power over the person

Question 36

When is the offence of grooming complete?

Answer 36

• when the parties meet • the defendant travels/makes arrangements to meet with the relevant intent • when the defendant arranges/persuades the young person to travel with the intention of meeting them

Question 37

When can a previous consistent statement be admitted?

Answer 37

As rebuttal evidence only

Question 38

How far out must a prosecutor give the transcript to the defence before preliminary hearing or defended summary hearing?

Answer 38

At least 7 days

Question 39

Name three circumstances where Police would remove a child from a household:

Answer 39

In cases involving: Serious Wilful neglect Serious physical abuse Sexual assault When a child is witness to a serious assault Any allegations made against a CYF carer involving serious physical abuse Any allegations made against CYF staff or Police involving serious physical abuse

Question 40

S195 CA 1961, What is necessary to prove criminal liability in failing to protect a child?

Answer 40

- the offence applies to members of the same household as the victim - the offender must be 18 years or over KNOWS (mens rea) the victim is at risk of death, GBH or sexual assault as a result of the unlawful acts or omissions of another person; and FAILS (actus reus) to take reasonable steps to protect the victim from that risk

Question 41

In what other ways can a witness give evidence?

Answer 41

- while in the courtroom but unable to see the defendant or some other specified person (Screens) - from an appropriate place outside the courtroom, either in New Zealand or elsewhere (CCTV) - by a video record made before the hearing of the proceeding (DVD)

Question 42

Before attending a Medical Examination, what should you explain to a victim?

Answer 42

- that the examination will be conducted by a medical forensic practitioner specially trained in examining victims of sexual assault - the benefits of a full medical forensic examination including: ​- potential benefit to their physical, sexual and mental health ​- how the examination can help Police obtain evidence to apprehend ​the offender -the expected time frame for the examination and, if appropriate, possible outcomes of the examination

Question 43

What are the three areas to consider in determining whether physical abuse is serious and there meets the threshold for referral as a CPP case?

Answer 43

- the action of the abuse - the injury inflicted, and - the circumstances (factors of the case)

Question 44

No question can be put to the victim regarding… (S44, Evidence Act 2006)

Answer 44

previous sexual history with any person other than the defendant

Question 45

Can a 17 year old uncle be charged with failing to protect a child?

Answer 45

- offenders must be from the same household, or visit frequently - must be over 18 years of age

Question 46

What are the three categories of file in relation to ASA?

Answer 46

Acute - within 7 days Non acute - 7 days to 6 months Historic - 6 months or more

Question 47

Before attending a MEK, what should you remind the victim?

Answer 47

- no eating or drinking - no going to the toilet (if necessary, use a toxicology kit to capture uring and ask the female victim not to wipe) - no washing or showering - no washing of hands or biting fingernails

Question 48

In certain circumstances S87 EA2006, the Judge can ask the witness to state their address details. In what circumstances will this occur?

Answer 48

if the judge determines that they are directly relevant to the facts in issue and that to exclude them would be contrary to the interest of justice.

Question 49

When is the offence of sexual exploitation with a person with significant impairment complete?

Answer 49

- 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

Question 50

For a charge of incest to be proved the offender is required to have a certain knowledge. What is that knowledge?

Answer 50

Must know if the relationship

Question 51

Defence to charge 131B - meeting YP

Answer 51

S131B(2) if they prove that before the act they had taken reasonable steps to find out 16+ and believed they were 16+

Question 52

Rape / SC - crown must prove (3)

Answer 52

- complainant did not consent - offender didn’t believe they consented - or if they did believe the grounds for belief were unreasonable

Question 53

Assault with intent to commit SV. Crown must prove (3)

Answer 53

- the defendant intended to sexually violate the victim - the complainant did not consent - the defendant did not believe on reasonable grounds that the victim was consenting

Question 54

What consent case law is used for sexual conduct with young person cases?

Answer 54

R v Cox Must be present or 128 offence applies

Question 55

Indecent assault. Crown must prove (3)

Answer 55

- 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

Question 56

Significant impairment for s138

Answer 56

An intellectual, mental or physical condition or impairment (or a combination of 2 or more) that affects a person to such an extent that it significantly impairs the persons capacity - To understand the nature of the sexual conduct or To understand the nature of decisions about sexual conduct or Foresee the consequences of decisions about sexual conduct or Communicate decisions about sexual conduct