Other Sexual Offences Flashcards
A person found guilty of sexual violation must be sentenced to imprisonment unless the Court thinks they shouldn’t.
What two matters affect whether a person is sentenced to imprisonment for sexual violation?
- The particular circumstances of the person convicted
- The particular circumstances of the offence, including the nature of the conduct constituting it.
Sexual Conduct by Coercion
Title
Act/Section
Elements
CA61; S129A ss(1)
14 years imprisonment
- Has sexual connection
- With another person
- Knowing that the other person has been induced to consent to the connection by threat
ss(2)
5 years imprisonment
- Does an indecent act on another person
- Knowing that the other person has been induced to consent to the act by threat
Sexual Conduct by Coercion - types of threats - CA61; S129A
- Punishable by imprisonment but does not involve the actual or threatened application of force to any person
- An accusation or disclosure (whether true or false) about misconduct by any person (whether living or dead) that is likely to seriously damage the reputation of the person against or about whom the accusation or disclosure is made;
- A threat that the person making the threat will make improper use, to the detriment of the person consenting, of a power or authority arising out of—
(i) an occupational or vocational position held by the person making the threat; or
(ii) a commercial relationship existing between the person making the threat and the person consenting.
Incest
Elements and liability structure
CA61; s130 ss(1)(a) and (b);
10 years imprisonment
- *1. A person:**
- Gender neutral
2. Has sexual connection with
- Definition (CA61; s2)
- Consent
RTS - remember to address that there is consent between the parties
- *3. A parent and child or siblings, half-siblings or grandparent and grandchild**
- RTS - cover off the nature of the relationship
- *4. And the person charged knew of the relationship**
- R v Forrest and Forrest - Demonstrate the person’s age (over 16)
- RTS how they were aware of the relationship
What is the legislative age and what is the penalty for incest?
CA61; S130(2):
(2) Every one of or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 10 years.
Incest - consent
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.
Relationships between parent and child
Where a child has been adopted, the birth parents remain ‘parents’ for the purpose of the offence of incest.
Adoptive parents are also considered ‘parents’. However, where only one of the spouses adopts the child, the other is not liable for incest but may be liable under S131 - sexual conduct with a dependant family member.
Step relationships
Liable under S131 - sexual conduct with a dependent family member
Knowledge of relationships - incest
It is essential that each person charged must know of their relationship before or at the time of the sexual connection.
Each party who was or over the age of 16 years at the time of the act is liable as a principal offender.
Sexual Conduct with Dependent Family Member
Elements / liability structure
CA61; S131 ss(1)
- *1. A person:**
- Gender neutral
- *2. Has sexual connection with:**
- Definition (CA61; s2)
- Consent (remember consent is not a defence, but there will be an element of it otherwise s128)
3. A dependent family member:
- S131A - how the relationship meets the definition of a dependent family member
RTS - cover off the nature of the relationship and authority over the young person
- *4. Under the age of 18:**
- R v Forrest and Forrest - Demonstrate the person’s age (over 16 / under 18).
***
ss(2) - Attempts to have sexual connection with
ss(3) - Does an indecent act on a dependent family member
***
Of note:
(4) The dependent family member cannot be charged as a party to the offence.
(5) It is not a defence to a charge under this section that the dependent family member consented.
Dependant family member defined
CA61; S131A:
(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.
Dependant Family Member Definition
Also includes
- Aunt, in relation to a person, includes a half-sister of one of the person’s parents
- Uncle, in relation to a person, includes a half-brother of one of the person’s parents.
- Foster parent includes a former foster parent
- Step-parent includes a former step-parent
- Guardian—
(a) means guardian by virtue of the Guardianship Act 1968 or the Oranga Tamariki Act 2018; and
(b) includes a former guardian
Meeting young person following sexual grooming etc
Title
Act/Section
Elements
CA61; S131B - 7 years:
(a) having met or communicated with a person under the age of 16 years (the young person) on an earlier occasion, he or she takes one of the following actions:
(i) intentionally meets the young person;
(ii) travels with the intention of meeting the young person;
(iii) arranges for or persuades the young person to travel with the intention of meeting him or her; and
(b) at the time of taking the action, he or she intends—
(i) to take in respect of the young person an action that, if taken in New Zealand, would be an offence against this Part; or
(ii) that the young person should do on him or her an act the doing of which would, if he or she permitted it to be done in New Zealand, be an offence against this Part on his or her part.
When is the offence of grooming complete?
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.
What is a defence to a charge of S131B - Meeting young person following sexual grooming, etc?
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.
