Flashcards in Module 7: Sexual Offences Deck (59)
What must the crown prove beyond reasonable doubt in all cases of sexual violation?
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.
What does Section 128(4) state?
That a husband who sexually violates his wife has no legal defense due to the fact they are married.
How do you prove penetration?
The complainant's evidence.
Medical examination (Injuries, DNA).
The Defendants admissions.
What does Section 127 of the Crimes Act state?
No presumption because of age, 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 a sexual connection. Any person of any age is capable (in a legal sense).
What does Section 128A of the Crimes Act state?
Matters not constituting consent:
-Does not consent because they do not protest or offer physical resistance.
-Does not consent if force applied to the victim or another person, threat of force or fear of force on the victim.
-Does not consent if asleep or unconscious.
-Does not consent if affected by alcohol or drugs to such a degree they cannot refuse.
-Does not consent if affected by mental or physical disability where they cannot refuse.
-Mistaken about the nature and quality of the sexual act.
Section 129(1) Attempted Sexual Violation and Section 129(2) Assault with Intent to Commit Sexual Violation are distinguished by?
129(1) - An attempt does not necessarily involve an assault.
129(2) - May not be sufficiently proximate to the full offence to constitute an offence.
List the two main forms of sexual violation.
Rape and unlawful sexual connection.
What are the penalty provisions for sexual violation set out in Section 128B of the Crimes Act?
Punishment for sexual violation is 20 years, and imprisonment should always be imposed on conviction unless there are special circumstances.
In negating consent, the Crown has to prove one of three things. List the three things.
The victim did not consent or
The victim's consent was not valid or
The Defendant did not believe on reasonable grounds that the victim was consenting.
What two elements need to proved in a charge of Assault with Intent to Commit Sexual Violation?
Assaulted the victim AND
Intended to commit sexual violation.
What is a defence to a charge under Section 134 of the Crimes Act?
Taken reasonable steps to find out whether the young person was of or over the age of 16 years AND
Believed the young person was of or over the age of 16 years AND
The young person consented.
In an Indecent Assault case, what must the Crown prove?
The defendant intentionally assaulted the complainant
The circumstances accompanying the assault were indecent.
The defendant intent the conduct that a reasonable person would find indecent.
Can a 16 year old girl be charge with having consensual sex with 14 year old by?
Yes, the girl can be charged as its an offence of Sexual Conduct with a Young Person Under 16 (s134).
Who does the ASAI policy apply to?
To all cases where the victim of the alleged
offending (male or female) is 17 years of age or older at the time of making the
Specially trained sexual assault medical forensic practitioners role is to?
Primary medical care.
Retrieve forensic medical evidence.
Referring victims to follow up medical care.
Provide examination reports to Police/Prosecutions.
Providing unbiased expert evidence in Court.
What are the 3 timings of Adult Sexual complaints?
Acute < 7 days
Non Acute - 7 days to 6 months.
Historic - > 6 months
What are the 12 steps of investigation in ASAI guidelines?
I - Initial actions on contact
C - Case referral
S - Specialist Support
P - Prelim Interview
I - Information Feedback
M - Medical Examination
F - Formal Interview
I - Investigation and evidence assessment
R - Resolutions
P - Prosecutions
F - Final Actions
P - Prevention
If a male has sexual intercourse with his 18 year old home stay student, is there any offence?
No offence committed (18 years and over is not an offence).
When is the offence of sexual grooming complete?
-when the offender intentionally meets the young person
- when the offender travels with intention of meeting the young person
- when the offender arranges for or persuades the young person to travel with the intention of meeting him or her
When can a previous consistent statement be admitted?
As rebuttal evidence only
How far out must a prosecutor give the transcript to the defence before preliminary hearing or defended summary hearing?
At least 7 days
Can a 16 year old female be charged with having sexual intercourse with a 14 year old male?
Name three circumstances where Police would remove a child from a household:
Serious Wilful neglect
Serious physical abuse
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
S195 CA 1961, What is necessary to prove criminal liability in failing to protect a child?
- 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
In what other ways can a witness give evidence? Section 105 Evidence Act.
- 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)
Before attending a Medical Examination, what should you explain to a victim?
- 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
Preference on male / female doctor.
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?
- the action of the abuse
- the injury inflicted, and
- the circumstances (factors of the case)
Can a child aged 12 consent to sexual intercourse?
Yes - only in exceptional rare circumstances, however Section 132(5) states there is no defence of consent with sexual connection with a child under 12 years.
Is it an offence for an adoptive parent to have sexual intercourse with his 18 year old daughter?
Yes it is, an adoptive parent is a 'parent' thus incest.