Sex Flashcards
(110 cards)
1
Q
In sexual cases the term victim and complainant are
A
Interchangeable.
2
Q
Sexual violation is?
A
Non consensual sexual connection with another person
3
Q
Define rape
A
It’s a specific form of sexual violation that involves the non-consensual penetration of the complainants genitalia by the offenders penis
4
Q
Define unlawful sexual connection
A
Any form of non-consensual penetration or oral connection with a persons genitalia or anus
5
Q
What must the crown prove for section 128(1)
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 and
The defendant did not believe the complainant was consenting or
If the offender did believe the complainant was consenting, te grounds for such belief were not reasonable.
6
Q
Any investigation must prove that either
A
He defendant knew they did not have the victims consent but acted anyway (men’s Rea) or
The defendants ground for. Believing that the victim consented to the act were unreasonable
7
Q
Section 128(4) - spousal defence
A
A person who sexually violates their spouse has no legal defence due to them being a couple or legally married
8
Q
Sexual connection section 2 CA61
A
(a) connection effected by the introduction into the genitalia or anus of one or more person, otherwise than for genuine medical purposes, of
(i) a part of the body of another person or
(ii) an object held or manipulated by another person or
(b) connection between the mouth or tongue of one person and a part of another persons genitalia or anus or
(c) the continuation of connection of a kind described in paragraph (a) or (b)
9
Q
Proof of penetration may be established by
A
- The complainants evidence
- Medical examination including physical injuries and DNA evidence
- the defendants admissions
10
Q
Section 128(B)
A
(1) every one who commits sexual violation is liable to imprisonment for a term not exceeding 20 years
(2) a person convicted of sexual violation must be sentenced to imprisonment unless, having regard to the matters stated in subsection (3) the court thinks that the person should not be sentenced to imprisonment
(3) those mattes are:
(a) the particular circumstances of the person convicted and
(b) the particular circumstances of the offence, including the nature of the conduct constituting it.
11
Q
The seriousness of an offence depends on
A
The facts of the particular case
12
Q
Section 128(1)
A
Sexual violation is the act of a person who,
(a) rapes another person or
(b) has unlawful sexual connection with another person
13
Q
128(2) person a rapes person b
A
Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person Bs genitaliaby person As penis
(a) without person Bs consent and
(b) without believing on reasonable grounds that person B consented to the connection
14
Q
128(3) unlawful sexual connection
A
Person A has unlawful sexual connection with person B if person A has sexual connection with person B
(a) without person Bs consent to the connection and,
(b) without believing on reasonable grounds that person B consents to the connection
15
Q
Define genitalia - sec 2 CA61
A
Includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia whether the person is male, female or of indeterminate sex
16
Q
The genitalia or genitals (organs of reconstruction) include
A
The penis and testicles of a male and vagina and vulva of a female
17
Q
R v KOROHEKE
A
The genitalia comprise the reproductive organs both interior and exterior hey include the vulva and labia both interior and exterior at the opening of the vagina.
18
Q
Sexual violation - penetration
A
If a part of the offenders body or an object held or manipulated by him is between the complainants labia to the slightest degree, it will constitute penetration for the purposes of sexual violation
19
Q
R v N - penetration of the vulva
A
The offence is sufficiently proved by penetration of the vulva by the penis - proof of penetration of the vagina is not required
20
Q
Define penis - sec 2 CA61
A
Includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis whether the person concerned is male, female or of indeterminate sex.
21
Q
Objects held or manipulated
A
This provision applies to anything other than a part of his body, used by the offender to penetrate the complainants genitalia or anus - for eg: a vibrator, deodorant bottle or other hand held objects
22
Q
Genuine medical purposes
A
Medical examinations which penetrate the genitalia are excluded from the definition of sexual violation as long as they are genuine medical procedures.
23
Q
Mouth or tongue
A
In the case of oral connection it is not necessary for there to be penetration, any touching of a persons genitalia or anus with another persons mouth or tongue is sufficient
24
Q
Continuation of such acts - r v kaitamaki
A
Captures situations where sexual activity is started consensually, but consent is later withdrawn
25
R v kaitamaki
After he had penetrated the women and then realises that she is no longer consenting (or never consented) but continues then that act of intercourse becomes rape
26
Section 127 CA61 - presumption of age
There is no presumption of law that a person is incapable of sexual connection because of his or her age
27
Establishing that sexual connection was unlawful involves a mixed subjective, objective test in relation to consent - the crown must prove?
- the complainant did not consent to the sexual act and
- the offender did not believe the complainant was consenting or
- if he did believe she was consenting e grounds for such belief were unreasonable.
28
Define consent
Is a person conscious and voluntary agreement to something desired or proposed by another. R v Cox
29
R v cox - consent
Consent must be full, voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgment.
30
Reluctant consent
R v Herbert
A true consent may be given reluctantly or hesitantly and maybe regretted afterwards - if consent is given in any manner, provided it is without fear or fear of the application of force, then the act of sexual connection would not be rape
31
Subjective test - what was the complainant thinking
The crown must prove?
Crown must prove that the complainant was not consenting to the sexual acts the time it occurred
- if it is established the complainant was not consenting, the next question is whether or not the defendant believed she was consenting at the time.
- if he did believe she was consenting then an objective test must apply to determine whether there was a reasonable basis for his belief
32
The objective test is?
What would a reasonable person have believed if placed in the defendants shoes
33
R v gutuama
Under the objective test the crown must prove that no reasonable person in the accused shoes could have thought the complainant was consenting.
34
Recklessness as to whether the complainant was consenting
IS NOT consistent with having a reasonable belief
35
Section 128A outline matters not constituting consent
A person does not consent when:
(1) if they do not protest or offer physical resistance to the activity
(2) allows the activity because (a) force applied to her or some other person or (b) threat or application of force to her or some other person or (c) the fear of application of force to him or some other person
(3) if the activity occurs when they are asleep or unconscious
(4) if the activity occurred while they are effected by alcohol or drugs
(5) if they are affected by mental illness, impairment or physical condition to a degree that they cannot consent or refuse to consent
(6) if they are mistaken about the identity of the other person
(7) if they are mistaken about the quality of the act
(8) this section does not limit the circumstances in which a person does not consent
36
R v koroheke - consent
Submission by a women because she is afraid of what might happen is she does not give in or cooperate is not true consent
37
Rape sec 128(1)(a) CA61
The offence of rape specifically involves penetration of the complainants genitalia by the offenders penis
38
To be guilty of an attempt to commit an offence the defendant must?
- intend to commit the offence and
| - take a real and substantive step towards achieving that aim
39
Sec 129(1) Attempts to commit sexual violation
Everyone who attempts to commit sexual violation of the other person is liable to imprisonment for a term not exceeding 10 years
40
Section 72 CA61 - Attempts
Every one who having an intention 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 or not in the circumstances it was possible to commit the offence or not
41
Crown must prove for attempts
That the defendant intended to commit the full act of sexual violation, and acted as he did for the purpose of achieving that aim
42
There are two types of intention?
Firstly to commit the act
Secondly the intention to get a specific result
43
INGREDIENTS for rape
128(1)(a) CA61 - 20years
- PERSON
- RAPE
- PENETRATION
- PROOF OF PENETRATION
- GENITALIA
- R V KOROHEKE - GENITALIA
- PENIS
- CONSENT
- 128A
- REASONABLE GROUNDS
- R V GUTUAMA Objective test
44
Define, Dependant family member section 131A(1) CA61
For the purposes of section 131, one person is a dependant 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 father, foster parent, guardian, uncle or aunt or
ii) a parent, step father or foster parent of a person described in sub paragraph 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 sub paragraph (i) or (ii) or (iii) or
45
Define, Dependant family member section 131A(1)(b) CA61
If they are members of the same family or 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
46
Define, Dependant family member section 131A(1)(c) CA61
If he or she is living with the other person as a member of the other persons 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
47
Define assault
The act of intentionally applying or attempting to apply force to the person of another, directly or indirectly or threatening by any act or gesture to apply such force to the person of another, if the person making the threats has or causes the other to believe on reasonable grounds that they have the present ability to effect his purpose
48
Define intent
Means to do it, they desire a specific result and act with the aim and purpose of achieving it.
49
R v Mohan
A decision to bring about, in so far as it lies within the accused power, the commission of the offence.
50
R v Waaka
A fleeting or passing thought is not sufficient, there must be a firm intent of purpose to effect an act
51
INGREDIENTS
```
Sexual conduct with a dependant family member (under 18)
Section 131(1) - CA61 - 7 years
```
Everyone
Sexual connection
Dependant family member under 18
```
PERSON
SEXUAL CONNECTION
PENETRATION
PROOF OF PENETRATION
GENITALIA
R V KOROHEKE
DEPENDANT FAMILY MEMBER
PROOF OF AGE
```
52
INGREDIENTS
```
Sexual conduct with a child under 12
Section 132(1) CA61 - 14 years
```
Everyone
Sexual connection
With a child
```
PERSON
SEXUAL CONNECTION
PENETRATION
PROOF OF PENETRATION
GENITALIA
R V KOROHEKE
CHILD - sec 132(6)(a) a person under 12 years
PROOF OF AGE
```
53
Child
Section 132(6)(a) means
A person under 12years
54
INGREDIENTS
Sexual conduct with a child under 12
Section 132(3) CA61 - 10 years
Everyone
Does an indecent act
On a child
```
PERSON
INDECENT ACT
INDECENCY - R v Court
IF SUCH AN ACT....
DOING AN INDECENT ACT INCLUDES INDECENTLY ASSAULTING
(Sec 132(6)(b)
CHILD
PROOF OF AGE
```
55
Define indecent act?
An act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values
56
# Define indecency
R v Court
Indecency means conduct that right thinking people will consider an affront to the sexual modesty of the complainant
57
If such an act is done with the consent of the child, it is immaterial whether?
- The offender does an act on the child
- the child does the act on the offender
- the act is mutual
58
Doing an indecent act on a child includes?
Section 132(6)(b)
Indecently assaulting the child
59
INGREDIENTS
Sexual conduct with a young person under 16
Section 134(1) - 10 years
Everyone
Has sexual connection
With a young person
PROVING AGE
60
INGREDIENTS
```
Sexual conduct with a young person under 16
Section 134(3) - 7 years
```
Everyone
Does an indecent act
On a young person
61
INGREDIENTS
Indecent assault
Section 135 - 7 years
Everyone
Indecently assaults
Another person
62
Define indecent assault
Assault accompanied by circumstances of indecency
| R v Lesson
63
Define PENETRATION
Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection
64
In all sexual cases there are three things the crown must prove for consent beyond reasonable doubt
- The complainant did not consent
- the offender did not believe the complainant was consenting or
- if the offender believed the complainant was consenting his grounds for such belief were unreasonable
65
Statutory defence for section 134A sexual conduct with a young person under 16
134(1)(a) - before the time of the act, they had taken reasonable steps to find out whether the young person was of or over the age of 16 and,
134(1)(b) - at the time of the act he believed on reasonable grounds that the young person was of or over the age of 16 years and
134(1)(c) - the young person consented
66
```
Section 134A(2) except to the extent of section 134A
(a) it is not a defence to a charge under 134 that the young person consented and
```
(b) that the person charged believed they were of or over 16 years of age
H
67
Reasonable steps for 134A sexual conduct with a young person u der 16
The defendant must show what steps they took to ascertain the young persons age and satisfy the court that these steps were all that could have been done
68
Section 131B CA61 Meeting a young person following sexual grooming
131B(1) every person is liable to imprisonment for 7 years who
(a) having met or communicated with a young person under 16 years on an earlier occasion, he 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 y/p to travel with the intention of meeting him or her and
(b) at the time of taking the action he or she intends;
i)
ii)
69
Consent must be (R v Cox)
Full, voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgement.
70
Previous consistent statements (rebuttal evidence)
Will really only be admissible as rebuttal evidence under section 35(2) EA 2006
71
R v lesson - indecent assault
The definition of indecent assault is assault accompanied with circumstances of indecency
72
Section 129A (5) - other sexual offences
Sexual conduct with consent induced by threats
This section creates an offence of inducing someone to commit sexual connection in response to an implied threat that does not involve force.
73
Section 195A - failure to protect a child
Situations where it is known a child or vulnerable adult is at risk of harm but where no action is taken.
The offence applies to:
- members of the same household as the victim
| - people who are staff members of any hospital, institution or residence where the victim resides
74
Section 195A failure to protect child
Men's Rea and actus reus
Mens Rea - knows that the victim is at risk of death, gbh,or sexual assault as a result of the acts or omissions of another person and
Actus Reus - fails to take reasonable steps to protect the victim from that risk
75
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Section 195A (1)
- imprisonment for 10 years being a person described in sub (2) has frequent contact with a child or vulnerable adult (the victim) and
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1 (a) knows the victim is at risk of death, gbh or sexual assault as a result of -
(i) an unlawful act by another person, or
(ii) an omission by another person to discharge or perform a legal duty if in the circumstances that omission is a major departure from the standard or care expected of a reasonable person to whom that legal duty applies and
(b) fails to take reasonable steps to protect the victim from that risk
76
Section 195A failure to protect child or vulnerable adult
Section (2)
(2) the persons are
(a) a member of the same household as the victim or
(b) a person who is a staff member of any hospital, institution or residence where the victim resides
77
Section 2 evidence act 2006 - privacy as to a witnesses address
(2) a judge must not grant permission under sub (1) unless satisfied that the question to be put, the evidence to be given, or the statement or remark to be made, is of sufficient direct relevance to the facts in issue that to exclude it would be contrary to the interest of justice
78
What do we need to achieve in a Preliminary interview point 4
The purpose of a preliminary interview is to gather time critical information necessary for investigators to gain a better understanding of what happened and to establish a
- brief outline of facts
- victim safety
- public safety
- urgent investigation needs, considering potential loss of evidence, medical circumstances and suspects likely actions
79
3 things to prove for attempted sexual connection
It must be proved that at the time the defendant assaulted e victim he -
- Intended to have sexual connection with the complainant and
- the complainant did not consent to the connection and
- the defendant did not believe on reasonable grounds the complainant was consenting
80
What is the principal difference between rape and unlawful sexual connection
Rape is a specific form of unlawful sexual connection which involves penetration of the victims genitalia by the offenders penis.
81
What are the Three types of ASAI complaint types
Acute, non-acute and historic
82
For indecent assault the prosecution must prove
- 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
83
If the issue of consent is raised for indecent assault the crown must also prove two further elements which are?
The complainant did not consent to the assault and the defendant did not honestly believe the complainant was consenting
84
Indecent assault cannot be committed accidentally,it must be proved the defendant intended to act indecently
R
85
Three elements for sexual conduct with a child under 12
- sexual connection with a child
- attempted sexual connection with a child
- does an indecent act on a child
86
Section 130 incest
(1) Sexual connection is incest if
(a) it is between two people whose relationship is that of parent and child, siblings, half siblings, grandparents and grandchild and
(b) the person charged knows of the relationship.
(2) everyone over 16 who commits incest gets 10years
87
Key factors for incest are
The relationship and knowledge of the relationship - but the offender must be over 16
88
A step parent and step child are not prosecuted under incest but
Are liable under section 131 sexual conduct with a dependant family member
89
EVIDENCE
Section 44 EA006
44(1) EA006 - no evidence
No evidence can be given and no questions can be put to the witness relating, directly or indirectly to previous sexual experience with any other person other than the defendant, except with the permission of the judge
90
Section 87 evidence act 2006
Protects the witness
Protects the witness from having to state their address,
91
Section 88 EA 06 protects
Protects disclosure of the complainants occupation
92
Section 121 EA06 - corroborative evidence
(1) In any criminal proceedings the complainants evidence does not have to be corroborated.
93
Previous consistent statements will really only be admissible as rebuttal evidence
A
94
Section 103 EA06 - list ways a witness can give evidence in an alternative way
- the age or maturity of the child
- the trauma suffered by the child
- the witness fear of intimidation
- the nature of the proceeding
- the nature of the evidence the witness is expected to give
- the relationship of the witness to any party of the proceeding
95
Prosecutor to give transcript to defence after defendant pleads not guilty
E
96
A witness may also give evidence in court x 3 ways
While in the court room behind screens
Outside the court via CCTV
By video record made before the hearing
97
R v Harpur- attempts
An attempt includes an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the offence
98
Examples of acts that may constitute an attempt (American model penal code)
- lying in wait, searching for or following the victim
- enticing the victim to go to the scene of the intended crime
- possession, collection or fabrication of materials to use in the commission of the offence
- unlawful entry of a thing in which it is contemplated that the offence will be committed.
99
Assault with intent to sexually violate has two intents - the offender may assault the victim:
- In the hope the victim will change their mind and consent to the act or
- intending to commit rape or s/connection regardless if they change their mind
100
What advantages are there for visually recorded interviews
- greater quality and quantity of information obtained
- minimising trauma to the witness
- reducing contamination by the interviewer when transposing the interview into a statement
- providing a valuable means for the witness to refresh their memory before judicial proceedings
101
R v M - DVD record of a child
The court said with a child complainant, evidence will normally be given by way of video record, unless there are exceptional circumstances
102
What needs do child video interviews meet
- The process is focused on the child and allows them to state freely what has happened
- the video can be used for investigation needs
- it avoids the need to re-interview the child
103
Sections 103 and 105 EA06 provide?
The basis for the crown to present the videos as evidence in chief in court
104
Achieving a successful outcome when investigating a sexual assault requires the careful balance of two priorities
- Undertaking the investigation as quickly as possible
| - meeting the complainants physical and emotional needs
105
Victim defined
A person against whom an offence is committed by another person
106
When interacting with victims of sexual offences, provide a safe and secure environment so they can regain control of their lives
- Conduct your dealings in a sensitive manner
- accept they are telling the truth unless there is evidence of the contrary
- listen to what they tell you
- do they require medical attention
- treat them courteously
- explain the process
- advise them of counselling services
107
Trace evidence - list 4 things a victim should. It do before a medical exam
- do not eat
- refrain from going to the toilet
- do not wash or shower
- don't wash your hands or bite fingernails
108
List four points to explain the forensic exam
- conducted by a doctor specially trained in victims of sexual assault
- the benefits of a full medical exam
- benefit to their physical, mental and sexual health
- helps police to obtain evidence to capture offender
- time and outcomes of the examination
109
The mnemonic CALM TEA
```
Conduct
Accept - they are telling truth
Listen - to what they have to say
Medical attention
Treat - them courteously
Explain the process and why
Advise - them of counselling services
```
110
Three areas to determine if physical abuse is serious
- the action of the abuse
- the injury inflicted
- the circumstances
