What is required to prove the mens rea element of Assault with Intent to Commit Sexual Violation?
At the time of the defendant's conduct he - intended to have sexual connection with the complainant, AND - the complainant did not consent to the intended sexual connection, AND - the defendant did not believe on reasonable grounds that the complainant was consenting
It is not a defence to a charge of sexual conduct with a child that the offender believed the complainant was 12 years of age or over.
What are the statutory defences listed in 134(4) and (5)?
(4) Married to the young person (5) The young person cannot be charged as a party to the offence if the offender was 16 yrs or over at the time
What does the defendant need to prove for a statutory defence to a charge under Crimes Act 1961, Section 134A?
- they had taken reasonable steps to ascertain that the young person was at least 16 AND - they believed on reasonable grounds that the young person was at least 16 AND - the young person consented.
What must be proved for a charge of indecent assault?
- defendant intentionally assaulted complainant - circumstances accompanying assualt were indecent - defendent intended conduct that a reasonable person would find indecent
How is dependent family member defined in s131A(1)(a)?
(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 factor partner of a person described in subparagraph (i) or subparagraph (ii) or subparagraph (iii)
How is dependent family member defined in s131A(1)(b)?
if they are members of the same family, whanau, or other culturally recognized 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
How is dependent family member defined in s131A(1)(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.
Section 131B covers Meeting young person following sexual grooming etc. When is this offence complete?
When the parties meet OR the defendant travels OR makes arrangements to meet the complainant WITH the relevant intent.
128A Matters that do not consitute consent
- Not protesting or offering physical resistance to the use of force - Application of force to self or others, threats of force to self or others, or fear of force to self or others - Asleep or unconscious - So affected by drugs/alcohol they cannot consent - So affected by mental or physical impairment they cannot consent - Mistaken Identity - Mistaken as to the nature and quality of the act
Reasonable grounds (Is a three-step process)
Subjective test - Step one - Absences of consent What was the complainant think at the time? Was she consenting? Subjective Test - Step two - Belief in consent If s/he was not consenting did the offender believe the complainant was consenting? Ie what was the offending thinking at the time Objective Test - Step three - Reasonable grounds for belief If the offender believed the complainant was consenting, was that belief reasonable in the circumstances. Ie what would a reasonable person have believed if placed in the same position as the defendant?
Means guardian by virtue of the Guardianship act 1968
Indecent Assault - What must the prosecution prove?
1. The defendant intentionally assaulted the complainant 2. The circumstances accompanying the assault were indecent 3. The defendant intended the conduct that a reasonable person would find indecent.
Defence to Section 134 - Sexual Conduct with a Young Person
If the defendant can prove that at the time of the sexual activity: 1) They had take reasonable steps to ascertain that the young person was at least 16 AND 2) The believed on reasonable grounds that the young person was at least 16, AND 3) the young person consented.
Age ranges for Sexual Offences?
Child = Under 12yrs old (age and consent CANNOT be a defence) Young Person = 12 - 15yrs old (this can also include under 12's if age at the time of offending in uncertain) Adult = Over 15yrs old
Circumstances where allowing sexual activity DOES NOT amount to consent? (s128A)
1) Not protesting or offering physical resistance. 2) Allows the activity because of force applied to them or someone else, the threat of such force or fear of that force. 3) Is sleeping or unconscious. 4) So affected by alcohol or drugs that they cannot consent or refuse. 5) Is affected by intellectual, mental or physical condition or impairment of such a nature that they cannot consent or refuse. 6) Mistaken Identity. 7) Mistaken about the nature or quality of the act.
Two Subjective Tests for Consent (Objective Test is in R v Gutuama)
1) What was the complainant thinking at the time? The Crown must prove that the complainant was NOT consenting. 2) What was the defendant thinking at the time? If he believed she was consenting at the time, then the Objective Test must be applied. What would a reasonable person have believed if placed in the same position?
Penetration and how to prove it
s2(1A) "sexual connection" introduction to the slightest degree is enough to effect a connection. Proving Penetration may be established by - the complainant's evidence - medical examination, including physical injuries and DNA evidence - the defendant's admissions.
Explain the provisions relating to matters that do not constitute consent
Crimes Act 1961, Section 128A Circumstances in which a person allows sexual activity but it does not amount to consent: - force, threat or fear of violence - lack of protest or resistance - asleep or unconscious - affected by alcohol or drugs - intellectual, mental or physical impairment - mistaken as to identity - mistaken as to nature and quality of act
What are the two offences under s129?
(1) Attempted sexual violation (2) Assault with intent to commit sexual violation
s72(1), Crimes Act 1961 Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
List three examples of circumstantial evidence from which an offender's intent may be inferred
- offender's actions and words before, during and after the event - surrounding circumstances - nature of the act itself
What is the principle difference between rape and unlawful sexual connection
"Rape" is a specific form of unlawful sexual connection that involves the penetrations of the complainant's genitalia by the offender's penis.
To be guilty of attempted sexual violation, what must the Crown prove
The crown must prove that at the time of the defendants conduct they; - Tried to sexually violate the complainant, and - The complainant did not consent tot he intended sexual connection, and - The defendant did not believe on reasonable grounds that the complainant was consenting.
In practice what is the best evidence that should be used as proof of a child's age
R V Forrest and Forrest The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim's age. In practice, this generally involves producing the victims birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate. Ideally, the independent evidence will be that of a parent, but that will not always be possible.