Other Sexual Offences (Family) Flashcards
Nature of threat
This section creates an offence of inducing someone to commit sexual connection in response to an implied or explicit threat that does not involve force. The nature of the threat is outlined in subsection (5). The section uses the same definitions of ‘consent’ and ‘sexual connection’ as s128.
Incest
Section 130, Crimes Act 1961
Sexual connection is incest if—
(a) it is between 2 people whose relationship is that of parent and child, siblings, half-siblings, or grandparent and grandchild; and
(b) the person charged knows of the relationship.
Every one of or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 10 years.
The Crimes Amendment Act 2005 changed “sexual intercourse” to “sexual connection”, thus capturing sexual abuse with the aggravating feature of the relationship. The key factors are the relationship and the knowledge of relationship, but the offender must be of or over the age of 16.
Consent is no defence to a charge under this section.
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
Normally, a child is adopted by both of the spouses involved. Occasionally, however, only one of the spouses adopts the child, and the other spouse merely consents to the adoption. In this situation, the consenting spouse is not an adoptive parent and so cannot be charged with incest, although they may be liable under section 131 (Sexual conduct with dependent family member) of the Crimes Act 1961.
Step Relationships
A step-parent and step-child are not “parent and child” under section 130. Sexual intercourse between a step-parent and step-child may instead come under section 131 (Sexual conduct with dependent family member) – see below, or section 128 (Sexual Violation).
Knowledge of relationships
For a charge of incest, it is essential that each person charged knew of their relationship before or at the time of sexual connection. The onus is on the Crown to prove this knowledge.
Each party who was of or over the age of 16 years at the time of the act is liable as a principal offender.
Sexual conduct with dependant family member
Section 131, Crimes Act 1961
(1) Every one is liable to imprisonment for a term not exceeding 7 years who has sexual connection with a dependent family member under the age of 18 years.
(2) Every one is liable to imprisonment for a term not exceeding 7 years who attempts to have sexual connection with a dependent family member under the age of 18 years.
(3) Every one is liable to imprisonment for a term not exceeding 3 years who does an indecent act on a dependent family member under the age of 18 years.
(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
Section 131A, Crimes Act 1961
(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) or subparagraph (ii) or subparagraph (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.
(2) In subsection (1),—
aunt, in relation to a person, includes a half-sister of one of the person’s parents
foster parent includes a former foster parent
guardian—
(a) means guardian by virtue of the Guardianship Act 1968 or the Children, Young Persons, and Their Families Act 1989; and
(b) includes a former guardian
step-parent includes a former step-parent
uncle, in relation to a person, includes a half-brother of one of the person’s parents.
Power or authority over dependant person required
This section provides for a wide range of domestic relationships and aims to be broad enough to cover all complainants who are vulnerable, by the nature of their relationship with the offender. Police need to prove that the offender, in addition to having one of the roles set out in the section (a parent, step-parent, foster parent etc), had power or authority over the dependent person.
Meeting young person following grooming
Section 131B, Crimes Act 1961
(1) Every person is liable to imprisonment for a term not exceeding 7 years if,—
(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 against any of paragraphs (a)(i), (d)(i), (e)(i), (f)(i), of section 98AA(1); 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.
Offence directed at ‘grooming’ via electronic means
This offence is directed primarily at “grooming” via the internet and includes text messaging and other forms of electronic communication. The section does not criminalise grooming per se — not least because grooming can take on an almost infinite number of guises.
The offence identifies and criminalises preparatory behaviour at the point where steps are being taken to implement the grooming, but before the offender has had a real opportunity to sexually abuse the complainant.
The section applies in all cases where either the defendant or the complainant is a New Zealand citizen or is ordinarily resident in New Zealand, whether or not the offence occurred in New Zealand.
When offence is complete
The offence is complete when the parties meet, or the defendant travels or makes arrangements to meet the complainant with the relevant intent. To be intentional the meeting need only be “purposely arranged”. This section is framed in gender-neutral terms.
Now includes a constable pretending to be a young person
Prior to 19 March 2012, the offence outlined in section 131B of the Act was not wide enough to include situations where the offender believes he or she is sexually grooming a young person but has in fact been in communication with a constable acting covertly.
The addition of the new subsection (1A) ensures a reference in section 131B to a young person also includes a constable who pretends to be a young person under the age of 16. The prosecution must prove the offender (when taking any of the actions in subsection (1)) believed the fictitious young person was a young person under the age of 16 years.
Sexual exploitation of significantly impaired person
Section 138, Crimes Act 1961
(1) Every one is liable to imprisonment for a term not exceeding 10 years who has exploitative sexual connection with a person with a significant impairment.
(2) Every one is liable to imprisonment for a term not exceeding 10 years who attempts to have exploitative sexual connection with a person with a significant impairment.
(3) For the purposes of subsections (1) and (2), a person has exploitative sexual connection with a person with a significant impairment (the “impaired person”) if he or she—
(a) has sexual connection with the impaired person knowing that the impaired person is a person with a significant impairment; and
(b) has obtained the impaired person’s acquiescence in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment.
(4) Every one is liable to imprisonment for a term not exceeding 5 years who exploitatively does an indecent act on a person with a significant impairment.
(5) For the purposes of subsection (4), a person exploitatively does an indecent act on a person with a significant impairment (the “impaired person”) if he or she—
(a) does an indecent act on the impaired person knowing that the impaired person is a person with a significant impairment; and
(b) has obtained the impaired person’s acquiescence in, submission to, participation in, or undertaking of the doing of the act by taking advantage of the impairment.
(6) For the purposes of this section, a significant impairment is an intellectual, mental, or physical condition or impairment (or a combination of 2 or more intellectual, mental, or physical conditions or impairments) that affects a person to such an extent that it significantly impairs the person’s capacity—
(a) to understand the nature of sexual conduct; or
(b) to understand the nature of decisions about sexual conduct; or
(c) to foresee the consequences of decisions about sexual conduct; or
(d) to communicate decisions about sexual conduct.
Compelling indecent act with animal
