SEX Flashcards
(146 cards)
1
Q
s128B Sexual Violation
A
Everyone commits sexual violation is liable to imprisonment not exceeding 20 years
A person convicted must be sentenced to terms of imprisonment unless the court thinks that person should not be sentenced to terms of imprisonment due to:
Particular circumstances of the person convicted, and
Particular circumstances of the offence and nature of the conduct
2
Q
s128(1)(a) Sexual Violation by Rape
A
A Person
Rapes
Another Person
3
Q
What do you look out for when reading scenarios for Rape?
A
Ensure you establish penetration of the genitalia by the penis and no valid consent. Age of the victim is irrelevant if there is no consent
4
Q
s127 No Presumption because of Age
A
Any person of any age is capable of sexual connection. It is not a defence to say that either parties were too old or too young to have sexual connection
5
Q
Ingredient definition: ‘A Person’ and ‘Another Person’
A
Gender neutral (the person’s biological gender is not relevant).
A person accepted by judicial notice or proved by circumstantial evidence
6
Q
Ingredient definition: ‘Rapes’
A
As defined by s128(2) CA 1961, sexual violation by rape is effected by the penetration of the victims genitalia by the defendants penis without the victims consent or without believing on reasonable grounds that the victim is consenting
7
Q
Define penetration
A
As defined in s2 CA 1961, any degree of penetration no matter how slight or fleeting, is sufficient
8
Q
How do you prove penetration?
A
The complainant’s evidence
Medical examination including physical injuries and DNA evidence
The defendant’s admissions
9
Q
R v N (penetration)
A
The offence is sufficiently proved by penetration of the vulva by the penis, proof of penetration of the vagina is not required
10
Q
Define genitalia
A
The genitalia include the penis and testicles of a male and the vulva and vagina of a female. As defined in s2 CA 1961, it includes surgically constructed or reconstructed organ analogous (gender reassignment surgery) to naturally occurring male or female genitalia (whether the person concerned is a male, female or of indeterminate sex)
11
Q
R v Koroheke (genitalia)
A
Genitalia comprise of the reproductive organs, internal and external, and includes the vulva and labia, both internal and external, at the opening of the vagina
12
Q
Define Penis
A
As defined in s2 CA 1961, the penis forms part of the male genitalia and includes surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female or of indeterminate sex)
13
Q
Define Consent
A
Consent is a persons conscious and voluntary agreement to something desired or proposed by another
14
Q
R v Cox (consent)
A
Consent must be full, voluntary, free and informed. Freely and voluntarily given by a person in a position to form a rational judgement
15
Q
R v Koroheke (consent)
A
Five Mongrel Mob members abducted and brutally violated a 15 year old girl. Their defence was she consented. The girl had only done what she was told because she was frightened.
it is important to distinguish between consent that is freely given, rather than submission to something that is unwanted but unavoidable
16
Q
R v Guatama (consent, OBJECTIVE)
A
No reasonable person in the accused’s shoes could have thought there was consent
17
Q
What must the crown prove beyond reasonable doubt? (the mens rea element)
A
There was an intentional act by the offender involving sexual connection with the complainant, and
The complainant did not consent to the sexual act (SUBJECTIVE), and
The offender did not believe the complainant was consenting (SUBJECTIVE, the offender’s mens rea), OR
The offender did believe the complainant was consenting but grounds for a belief were not reasonable (OBJECTIVE)
18
Q
What are examples of invalid consent under s128A?
A
(1) Lack of protest or resistance
(2) Force, threat or fear of force
(3) Asleep or unconscious
(4) Affected by alcohol or drugs
(5) Intellectual, mental or physical impairment
(6) Mistake as to ID
(7) Mistake as to nature and quality of act
19
Q
Under s128A what does ‘allows’ mean?
A
Acquiesces (to accept something reluctantly) or submits to or participates in sexual activity
20
Q
What is lack of protest or resistance?
A
Does not mean the complainant is consenting, what is relevant is their state of mind. The defendant may have believed that because of the lack of protest or resistance she was consenting, but was that belief reasonable?
21
Q
What is force, threat or fear of force?
(relates to consent in R v Koroheke)
A
It is not consent if:
some degree of force, or
the threat to use force, or
the fear that force would be used against them or another person,
was used to obtain compliance
22
Q
What is the degree of force necessary to negate consent?
A
Force that is intended or sufficient to cause bodily harm. A lesser degree of force would be accepted if it caused the victim to submit or not put up a fight
23
Q
What is asleep or unconscious?
A
Sexual activity while the complainant is asleep or unconscious is non-consensual, based on the fact that the relevant time for consent is the time of the sexual activity. Prior agreement before the complainant was asleep or unconscious does not constitute consent.
24
Q
R v Adams (When is consent relevant?)
A
The material time when consent, and belief in consent, is to be considered is at the time the act actually took place.
25
What is affected by alcohol or drugs?
The influence of alcohol or drugs can impact a person's ability to give valid consent. Were they incapable of understanding the situation to give rational or reasoned consent
26
R v Isherwood (relates to Alcohol or drugs)
The complainant was incapable of giving true consent after her drink was spiked and she was given drugs by the two defendants before submitting to sexual activity.
The crown held that 'proof that the influence of liquor or drugs has had a disinhibiting effect on the mind of the complainant is not necessarily incompatible with consent. It is all a question of degree'. The complainant has to be able to understand their situation and be capable of making up their mind when agreeing to sexual acts
27
R v Kim (relates to asleep, unconscious, alcohol or drugs)
If the complainant is asleep, unconscious, or so affected by alcohol or drugs they may have very little or no recollection of the events and will not be in a position to say whether they consented or not. As such it is not essential that there be evidence they did not consent
28
What is intellectual, mental or physical impairment?
Does the impairment deprive the complainant of the capacity to give or withhold consent. If the threshold for sexual violation has not been met, the defendant should be charged under s138, Sexual Exploitation of a Person with Significant Impairment
29
What is mistake as to identity?
The complainant's consent is void if it is based on the mistaken identity of the other person. If a man takes advantage of a female mistaking his identity and has sexual intercourse with her, then he is liable for a charge of sexual violation by rape.
The mistake as to identity is to be made by the complainant, not by the defendant
30
R v Murphy (relates to mistake as to ID)
The defendant got into bed next to a drunk sleeping woman who had consensual sex earlier. He initiated sexual activity with the woman, who participated believing it was the original man. Murphy was convicted of rape after taking advantage of her mistake as to his identity
31
What is mistake as to nature and quality of act?
Consent is void if the complainant was unaware of the true nature of the act to which they were agreeing. If the complainant agrees to an act other than intercourse but intercourse takes place, they cannot be said to have given their genuine consent
The mistake as to the nature and quality of the act is made by the complainant, not the defendant
32
R v Flattery (Mistake as to nature and quality of act)
A 14 year old girl consented to intercourse because she had been led to believe it was a form of medical treatment
33
R v Williams (Mistake as to nature and quality of act)
A 16 year old consented to what she believed was a medical procedure to improve her singing voice. The church choirmaster was convicted of rape as the girl had not consented to sex
34
s128(1)(b) Sexual Violation by Unlawful Sexual Connection
A Person
Has Unlawful Sexual Connection with
Another Person
35
Ingredient definition: 'Sexual Connection'
As defined in s2 CA 1961, sexual connection is the introduction, into the genitalia or anus of one person, of:
(a) A part of the body of another person, or
An item held or manipulated by another person, or
(b) The mouth or tongue of another person, or
The continuation of a connection described above in (a) or (b), and
Excludes genuine medical purposes
36
What makes sexual connection unlawful?
Establishing whether sexual connection was unlawful involves the subjective/objective test in relation to consent.
The complainant did not consent to the sexual act (SUBJECTIVE), and
The offender did not believe the complainant was consenting (SUBJECTIVE, the offender's mens rea), OR
The offender did believe the complainant was consenting but grounds for a belief were not reasonable (OBJECTIVE)
37
R v A (Who penetrated who)
Under s128(1)(b) the roles are not specified in terms of who is penetrated and who does the penetrating (sometimes it is the offender who is penetrated by the complainant)
A father forced his 14 year old son to have sexual intercourse with his stepmother against his will. She was charged with unlawful sexual connection and the father as a party.
38
R v Herbert (Reluctant consent)
True consent may be given reluctantly or hesitantly and regretted afterwards. If consent is given without fear, threats or actual force, then the act of sexual connection would not be rape
39
What is the subjective test from the complainant's point of view?
What was the complainant thinking at the time? The crown must prove that the complainant was not consenting to the sexual act (absence of consent). It is not for the defence to prove that she was
40
What is the subjective test from the defendant's point of view?
What was the defendant thinking at the time?
If the complainant was not consenting, then did the defendant believe she was consenting at the time (belief in consent). If the defendant did, then the objective test must be applied to determine the grounds for that belief
41
What is the objective test from the defendant's point of view?
What would a reasonable person have believed if placed in the same position as the defendant? If a reasonable person believed the complainant was consenting then the jury may acquit the defendant, if not then the jury is likely to convict
42
R v Clarke (Relates to the objective test)
The defendant was one of three men who raped a 16 year old at a party. He took her lack of resistance as consent, blaming his alcohol consumption for his lack of judgement. He said that what may appear unreasonable to a sober person may seem reasonable to a person under the influence of alcohol. The court rejected that argument saying that reasonable should not be interpreted to 'reasonable in the circumstances as the accused believed them to be'
43
What is the difference between rape and unlawful sexual connection?
Rape involves the non-consensual penetration of the complainant's genitalia by the offender's penis
Unlawful sexual connection includes any form of non-consensual penetration or oral connection with a person's genitalia or anus
44
Define anus
The anus is not included within the definition of genitalia. Non-consensual penetration of the anus by the penis is not rape, it is sexual violation of unlawful sexual connection
45
Define objects held/ manipulated
Anything held by the offender, other than a part of his body, to penetrate the complainants genitalia or anus
46
What is genuine medical purposes?
A genuine medical purpose is a cervical screening or prostate exam and is excluded from the definition of sexual connection. However, if a doctor penetrates a patient on a medical pretence but it is actually for sexual gratification, then this may amount to sexual violation
47
What is mouth or tongue?
It is not necessary for there to be penetration, any touching of the person's genitalia or anus with another person's mouth or tongue is sufficient
48
Define continuation
This is when sexual activity had started consensually but the consent is later withdrawn. A person is obligated to stop the sexual activity at the point they realise the other person is no longer a willing participant, failure to do so will render the act unlawful
49
R v Kaitamaki (relating to continuation)
A man broke into a woman's house and raped her twice. He noticed during the second act that she was not consenting but continued regardless. The court held that after he penetrated her, realised she was not consenting or had never consented, but continues, then the act becomes rape
50
How is attempt and assault with intent distinguished?
An attempt to commit sexual violation does not necessarily involve an assault
An assault with intent to commit sexual violation may not be sufficiently proximate to the full offence to constitute an attempt
51
s129(1) Attempted Sexual Violation
Liable to 10 years imprisonment
To be found guilty, a person:
Intended to commit an offence, and
Had taken a real and substantial step towards achieving it
52
R v L (mens rea in attempted sexual violation)
In attempted sexual violation the offender is unsuccessful in effecting the sexual connection. That is the only difference to sexual violation. The mens rea is still the same.
A female grabbed her 15 year old nephews penis and tried to put it in her vagina claiming he had consented.
Establishing that she was reckless as to whether he was consenting satisfies the requirements that any belief in the consent was not held on reasonable grounds
53
How are you guilty of an attempt (s72)?
The defendant must have progressed past the stage of preparation and started a process intended to lead to the full commission of the offence
54
R v Harpur (attempt)
The defendant detailed explicit sex acts he wanted to perform on a 4 year old girl. He showed up at the agreed time and place and found out the girl didn't exist and it was a 'Police sting'. It was concluded that his conduct was sufficiently proximate to the full offence and there was evidence of his intent.
An attempt includes an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime
55
What is sufficiently proximate?
The defendant's conduct at the relevant time, in conjunction with his intent based on the circumstances, and any steps taken leading up to that point
56
R v Harpur (sufficiently proximate)
The court may have regard to the conduct viewed up to the point the conduct stops, the defendant's conduct may be considered in its entirety. Considering how much remains to be done is relevant but not determinative
57
s129(2) Assault with Intent to Commit Sexual Violation
A Person
Assaults
Another Person
With Intent to Commit Sexual Violation
58
What does s129(2) require? (two elements to prove a charge)
Liable to 10 years imprisonment
Requires proof of an assault (does not need to be of an indecent nature provided it is done with intent and purpose of committing sexual violation)
(1) Assaulted the victim, and
(2) Intended to commit sexual violation
59
Define assault
As defined in s2 CA1961, the intentional application of force to a person of another, directly or indirectly
60
Ingredient definition: 'Intent'
Does a deliberate act (must be more than involuntary or accidental) with intention to get a specific result (aim, object or purpose)
61
R v Collister (intent)
Intent inferred from the circumstances:
The words and actions said before, during and after
The surrounding circumstances
The nature of the act itself
62
What are the two different intentions under s129(2)?
The offender may assault the victim:
in the hope that they will change their mind and consent to the act, or
to commit rape or sexual connection regardless of whether the complainant changes their mind
63
When might you file a charge under s129(2)?
When an offender assaults the complainants because they intend on having intercourse and to obtain the complainants consent
As an alternative charge of attempted sexual violation
64
What is s129A(5) Sexual Conduct with Consent induced by Certain Threats
Sexual connection with another person knowing that the other person was induced to consent to the sexual connection (14 years imprisonment) or to an indecent act (5 years imprisonment) as a result of a threat.
The threat does not need to involve actual or threatened application of force, and
The threat of an accusation likely to damage the reputation of the person, and
The threat arises from a power or authority from a person in an occupational or employment position, or a commercial relationship between the parties
65
In negating consent, what must the crown prove?
The victim did not consent, or
The consent was invalid (impaired etc), or
The belief the victim was consenting was not reasonable
66
s132(1) Sexual Conduct with a Child Under 12
A Person
Has Sexual Connection
With a Child Under 12
14 years Imprisonment
67
s132(2) Sexual Conduct with a Child Under 12
A Person
Attempts to have Sexual Connection
With a Child Under 12
10 years Imprisonment
68
s132(3) Sexual Conduct with a Child Under 12
A Person
Does an Indecent Act
With a Child Under 12
10 years Imprisonment
69
What are not defences under s132
s132(4) It is not a defence the person charged believed the child was over 12
s132(5) It is not a defence that the child consented
70
Cox v R (consent of a child)
We do not exclude that a child of 10 or 11 years old may give full, voluntary, free and informed consent to sexual intercourse. It would only be in exceptional and rare circumstances.
No reasonable adult would have grounds for believing that a 10 or 11 year old has the experience or maturity to understand the nature and significance of the act
71
How do you decide between a charge of s128 or s132?
s128 is a rape/ sexual connection with no consent
s132 is sexual conduct with a child with consent
A child, because of their age and stage of sexual development do not understand the significance of sexual intercourse, therefore consent will not be a legal consent. Distinction must be drawn between a child who is compliant and one who is truly consenting.
72
Define Child
Child means a person under the age of 12 (11 years and younger) and gender neutral
73
What is the best evidence for proof of age?
A birth certificate and independent evidence from a parent
74
R v Forrest and Forrest (Proof of age)
The best evidence possible in the circumstances should be adduced by the prosecution to prove the victims age
75
What is an indecent act?
An act accompanied by circumstances of indecency. It has sexual connotations and involves conduct to a person that is offensive to public moral values. It is usually consensual and in age-specific offences an indecent act on a CYP also includes indecent assaulting that CYP.
76
s132(3) whether a child consents or not to indecency
If a child consents to an indecent act, it doesn't matter if:
The offender does the act on the child,
The child does the act on the offender
The act is mutual
If the act is non-consensual or the child's consent is not legally valid, it is an indecent assault (s135)
77
R v Court (Indecency)
Conduct that right-thinking people will consider an affront to the sexual modesty of the complainant
78
R v Dunn (Objective test for indecency)
Indecency must be judged in light of time, place, circumstances, it must be more than trifling and sufficient to warrant the law
79
s134(1) Sexual Conduct with a Young Person Under 16
A Person
Has Sexual Connection
With a Young Person Under 16
10 years imprisonment
80
s134(2) Sexual Conduct with a Young Person Under 16
A Person
Attempts to have Sexual Connection
With a Young Person Under 16
10 Years imprisonment
81
s134(3) Sexual Conduct with a Young Person Under 16
A Person
Does an Indecent Act
On a Young Person Under 16
7 Years imprisonment
82
s134A What are the defences for s134?
The offender cannot be charged if they were married to the young person at the time
The young person cannot be a party to the offence if the offender is over 16
The statutory offence applies if:
The offender can prove before the sexual act occurred they took reasonable steps to find out if the young person was over 16, and
At the time of the sexual act they believed on reasonable grounds the young person was over 16, and
The young person consented
83
Define Reasonable Steps
The defendant must show the steps they took to ascertain the young persons' age and satisfy the court. The wider the age and maturity gap, the harder it will be to establish this defence
84
When is it not a defence to s134?
That the young person consented, and
The offender believed the young person was over 16
85
If two 15 year olds were having sex can they both be charged with the offence of Sexual Conduct with a Young Person?
Yes, but it wouldn't meet the Solicitor General Guidelines. However, if one person is 15 and the other is 16, then only the 16 year old can be charged
86
Define Young Person
A person under the age of 16 (a boy or girl aged between 12 and 15)
If the age of the complainant is in doubt, charges may be filed under both s132 (under 12) and s134 (under 16), or just s134
87
s135 Indecent Assault
A Person
Indecently Assaults
Another Person
7 Years imprisonment
88
R v Leeson (Indecent Assault)
An assault accompanied with circumstances of indecency
89
What must the crown prove in cases of Indecent Assault?
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
90
What happens if consent is an issue in Indecent Assault cases?
The crown must prove beyond reasonable doubt that:
The complainant did not consent to the assault, and
The defendant did not honestly believe the complainant was consenting
91
Define Indecent Intent
Indecent assault cannot be committed accidentally and will generally be sexually motivated, but not always
92
Define Assault in s135
The intentional application of force to a person of another, directly or indirectly.
It does not need to be forceful or violent, a gentle caress may suffice. It may include attempts and threats to apply force
93
Sexual Violation vs Indecent Assault (belief in consent)
Sexual violation - An honest belief in consent is not sufficient, unless there are reasonable grounds
Indecent Assault - An honest belief in consent is sufficient, even if it is not reasonable (R v Norris)
94
s130(1) Incest
A Person
Has Sexual Connection
With parent and child, siblings, half-siblings, or grandparents and grandchild, and
The Person charged knows of the relationship
10 Years imprisonment
95
Define consent in incest cases
Sexual connection in incest is carried out with the consent of both parties. If not, then the charge is sexual violation
96
What are the key factors in consent for incest that the crown must prove?
The relationship, and the person charged knew of their relationship before or at the time of the sexual connection, and each party at the time of the act who was of or over 16 is liable to be charged of incest
97
Define parent and child
Birth parents and adoptive parents
The partner of an adoptive parent is not a parent (this charge will be s131 instead)
Does not include step-parent and step-child (this charge will be s128 or s131 instead)
98
s131(1) Sexual Conduct with Dependent Family Member
A Person
Has Sexual Connection
with a Dependent Family Member
Under the Age of 18
7 Years imprisonment
99
s131A Dependent Family Member defined
Someone who has power and authority of another person and is a:
Parent, step-parent, foster parent, guardian (include former)
Child of his or her parent or step-parent
Uncle, Aunt (includes half-siblings of parents)
A spouse or de facto partner of the above
A member of a whanau or culturally recognised family group
Living with the other person who has responsibility for their care or upbringing
100
What must Police prove in s131(1)?
In addition to their family member role, they had power or authority over the dependent person
The young person is 16 or 17 years old
101
When is the offence of 's131B(1) Meeting Young Person following Sexual Grooming' complete?
Having met or communicated with a person under 16 earlier, he or she takes one of the following actions:
Intentionally meets the young person
Travels with intention of meeting the young person
Arranges or persuades the young person to travel with the intention of meeting, and
He or she intends to commit an offence
7 Years imprisonment
102
s131B(2) defence for grooming
The person charged proves that:
They took reasonable steps to find out whether the young person was of or over 16, and
They believed on reasonable grounds the young person was of or over 16
103
When a Constable pretends to be a young person under 16, what must the crown prove?
That the offender believed they were a young person under 16
104
s138 Sexual Exploitation of Person with Significant Impairment
A person who has or attempts to have:
Exploitative sexual connection or does an indecent act knowing the person is significantly impaired, and
has obtained the impaired persons acquiescence in, submission to, participated in or undertaking of, the connection, by taking advantage of the impairment
105
Define significant impairment
An intellectual, mental or physical (or a combination of 2 or more) impairment that affects the persons capacity, in regards to sexual conduct, to:
Understand the nature, or
Understand the decision, or
Foresee the consequences of those decisions, or
Communicate decisions
106
What are 3 offences with animals?
s142A Compels Indecent Act with Animal (whether or not involving penetration) - 14 Years imprisonment
s143 Bestiality (penetration) - 7 Years imprisonment
s144 Indecency with Animal - 3 Years imprisonment
107
s144A Sexual Conduct with CYP outside NZ
A NZ citizen or resident commits an offence outside NZ, that if done in NZ, would be an offence against s132(1),(2) and (3) and s134(1),(2) and (3) or against the use in prostitution of persons under 18
108
Whose permission do you need to file charging docs for s144A Sexual Conduct with CYP outside NZ?
Attorney-General
109
s144C Organising or Promoting Child Sex Tours
Makes, organises any travel arrangements for or on behalf of person to commit s144A offence
Transport person to place to commit s144A offence
Prints or publish information to promote conduct that constitute a s144A offence
110
Under s144C what are 2 examples of organising travel arrangements?
1. Purchase or reserve tickets to travel to a country outside NZ
2. Purchase or reserve accommodation outside NZ
111
Under s144C what is publication of information?
Any means, written, electronic or other form of communication including distributing of information
112
216H Prohibition on Making Intimate Visual Recording
Intentionally or recklessly makes an intimate visual recording of another person without their consent
113
s44 Evidence Act - Evidence of Sexual Experience of Complainants in Sexual Cases
No evidence or questions to the complainant about sexual experience other than with the defendant
s44(1) Evidence of complainant's propensity to act a certain way with the defendant, including sexually, may be offered if the Judge permits
114
When applying s44 Evidence Act when can the Judge grant permission?
When satisfied that the evidence or question is of such direct relevance to facts in issue in proceeding or the issue of appropriate sentence that it would be contrary to the interests of justice to exclude it
115
s87 Evidence Act - Privacy as to Witness's precise address
Protects witnesses from stating their address and having questions about that information including name and number of street, town or community, unless a Judge thinks it is relevant
116
s88 Evidence Act - Restrictions to Disclose Complainants' Occupation
Protects the complainant from having questions put to them or statements/remarks about their occupation, unless an application is made to a Judge
117
What is s121 Evidence Act?
The complainant's evidence does not have to be corroborated. Especially important in sexual cases where there is often no independent evidence
The exception is offences of:
Perjury
False oaths, statement or declarations
Treason
118
What is a previous consistent statement rule?
The challenge is based on:
Previous inconsistent statement of a witness
A claim that the witness recently invented evidence
119
What is the benefit of a L3 Specialist Interviewer?
They use enhanced cognitive interview techniques to maximize the quality and quantity of information obtained
120
What are the advantages of visually recording interviews?
1. Greater quality/quantity of information obtained
2. Minimizes trauma by having the evidence play as their evidence in chief
3. Reduces contamination by the interviewer
4. Allows the witness to refresh their memory before judicial proceedings
121
What if there is no specialist interviewer available?
An NCO can authorize someone who is trained in Investigative Interviewing level 1 or 2
122
How does a video recording meet the child's (under 18) needs?
Allows them to state freely and clearly what happened
Can be used for the basis of an investigation, criminal prosecution or care and protection
Avoids the need to re-interview
123
Who checks the SCWI transcript?
The interviewer, against the tape for accuracy and knowledge in their brief that this has occurred
124
What do you do after a SCWI is done?
Review the information disclosed
Update CFY the information discussed
Discuss protection concerns
Ensure safety
May need to adjust Initial Joint Investigation Plan (IJIP)
125
What are the grounds for a witness to give evidence in an alternative way under 103(3) Evidence Act?
Their age or maturity
Trauma suffered
Fear of intimidation
Nature of the proceeding
126
What is reg 28 of the Evidence Regulations 2007?
A typed transcript prepared by Police, is provided to the defendant or Lawyer as soon as defendant pleads not guilty, and the Court can adjourn to allow the defendant to consider the transcript
127
How can a witness give evidence under s105?
While in the court room uses a screen
Via CCTV outside the court room
By video recording made before the hearing
The Crown has to apply, and the Judge decides whether to allow this
128
Who does the offence 'Failure to Protect Child or Vulnerable Adult' apply to in s195A Crimes Act 1961?
Those who have care or charge of the complainant, being:
Members of the same household
Hospital, Institution or Residence staff members
129
How do you know if a person is a member of the same household?
Frequency and duration of visits
Familial relationship
130
What is a Child or Vulnerable Adult at risk of?
Death, GBH or Sexual Assaults
131
When will Criminal Liability arise?
When the person has frequent contact with the child or vulnerable adult and:
Mens Rea - Knows the victim is at risk of death, GBH, Sexual assaults, and
Actus Reus - Fails to take reasonable steps to protect the victim
132
How do you prove a charge for s195A
Victim under 18
Defendant over 18
Has frequent contact and,
Is a member of the same household, or
of a Hospital, Institution or Residence, and
They had knowledge of the risk of harm
133
Who decides that the defendants contact was frequent enough for s195A?
The Jury
134
What are the 2 Main Priorities in an ASA Investigation?
1. Undertake the investigation as quickly as possible
2. Meet the complainant's physical and emotional needs
135
What is the 12- Step Process in an ASA Investigation?
1. Initial Action on Contact (brief details)
2. Case Referral (To CIB/ ASA investigator)
3. Provide Specialist Support
4. Prelim Interview
5. Information Feedback (Informed of findings and decisions)
6. Medical Exam (Important within 7 days or drug facilitated)
7. Formal Interview (The victim's statement)
8. Investigation and Evidence Assessment (Scene exam, witness, suspect enquiries)
9. Resolution Options
10. Prosecution
11. Final Actions and Record Keeping (Case conclusion)
12. Preventative Opportunities and Responsibilities
136
What do you consider when doing in a prelim interview?
The brief outline of facts
Victim and public safety
Loss of evidence
Medical circumstances
Suspect actions
137
What should the victim refrain from before a medical exam?
Showering
Brushing their teeth
Drinking
Changing Clothes
Eating
Smoking
138
What do you explain to a victim before a medical exam?
It will be done by a specially trained doctor
It is for their health and safety
To obtain evidence
The expected timeframe
They can say no to any aspect of the exam, it is all up to them
139
What is the mnemonic CALMTEA?
C - conduct your dealings in a sensitive and concerned manner
A - accept that they are telling the truth unless proven otherwise
L - listen to what they tell you in their own words
M - medical attention
T - treat them courteously
E - explain the process you are following and why
A - advise them of local counselling services
140
What are the 3 things to consider when determining whether physical abuse is serious for a CPP case?
The action of the abuse
The injury inflicted, and
The circumstances
141
What are the responsibilities of Police to victims and their rights?
All obligations under the Victim Rights Act 2002 are met
All victim contact is recorded
Progress is given within 21 days
They must be updated on the outcome, including if no charges are filed
Their right to register on the Victim Notification System (s29)
All property returned
142
Define Child Abuse
Oranga Tamariki 1989 as:
The harming (whether physical, emotionally or sexually), ill-treatment, abuse, neglect, or deprivation of a CYP
You can remove a child if they will suffer or likely to suffer the above, and there is no other means of ensuring their safety
143
What are examples of physical child abuse?
Shaking a baby
Strangulation
Attempted drowning
Burning
Bone fracture
Injury that requires medical attentions
144
What does the 'Child Centered Timeframe's mean?
A timeframe relative to the child's age and cognitive ability. One week is a long time for a 5 year old to recall, but is easy for a 16 year old
145
What is the age limit for ASA and CP?
ASA is 18 years or older at the time of reporting
CP is 17 years and under at the time of reporting
146
What are the ASA time Frames?
Acute - within 7 days
Non-Acute - 7 days or more
Historic - 6 months or more
