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DDC Sex Module > Sex Module > Flashcards

Sex Module Flashcards

1
Q

Consent

Can a child aged under 12 consent to sexual connection?

Court of Appeal ruling

A

The Court of Appeal held that it would only be in “exceptional and rare circumstances” that a child could legally give consent.

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2
Q

Incest

Is it an offence for an adoptive parent to have sexual connection with his 18 year old adopted daughter?

A

Yes, adoptive parents are defined as parents under S130 of Crimes Act.

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3
Q

Evidence Act 2006

S44 (1), (2) and (3)

A

1) No evidence can be given and no question can be put to a witness relating directly or indirectly to the complainants sexual experience with any other person, other than the defendant, except with permission of the judge
2) No evidence can be given and no question can be put to a witness relating directly or indirectly to the reputation of the complainant in sexual matters
3) Judge must not grant permission re 1) unless satisfied that the evidence or question is of sufficient direct relevance to the facts at issue, or the issue of appropriate sentence, that it would be contrary to the interests of justice to exclude it

Evidence of sexual experience of complainants in sexual cases

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4
Q

Three things the crown must prove in relation to indecent assault

A
  1. The defendant intentionally assaulted the complainant
  2. The circumstances accompanying the assault were indecent
  3. That the defendant intended conduct that a reasonable person would find indecent
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5
Q

What are the three time periods relating to ASA complaints?

A
  1. Acute (within 7 days)
  2. Non-acute (7 days to 6 months)
  3. Historic
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6
Q

Defence to S134

A
  1. Before the time of the act, the defendant took reasonable steps to find out if the young person was 16 or over, AND
  2. At the time of the act, the defendant believed on reasonable grounds the young person was 16 or over, AND
  3. The young person consented
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7
Q

Act and Section

Sexual Grooming

A

S131B Crimes Act 1961

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8
Q

When is the offence of sexual grooming completed?

A

When having met or communicated with a person under the age of 16 years 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 pursuades the young person to travel with the intention of meeting him/her

Meeting must be “purposely arranged”

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9
Q

Evidence Act 2006

S87

A

Privacy as to witness’s precise address

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10
Q

Evidence Act 2006

Explain S87 (1)

A

1) In any proceeding, the precise particulars of a witness’s address may not - without the permission of the judge be;
a) the subject of any question to a witness or included in any evidence given, or
b) included in any statement or remark made by a witness, lawyer, court officer or any other person.

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11
Q

Evidence Act 2006

Explain S87 (2)

A

2) The judge must not grant permission under 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 interests of justice.

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12
Q

Evidence Act 2006

S88

A

Restriction on disclosure of complainant’s occupation in sexual cases

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13
Q

Evidence Act 2006

Explain S88(1)

A

In a sexual case, except with permission of the judge:
a) No question may be put to the complainant or any other witness and no evidence may be given concerning the complainants occupation; AND
b) No statement, or remark may be made in court by a witness, lawyer, officer of the court, or any other person concerning the complainants occupation.

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14
Q

Crimes Act 1961

S138

A

Sexual exploitation of person with significant impairment

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15
Q

Crimes Act 1961

When is the act s138 complete?

A

A person:
3(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 persons acquiescene in, submission to, participation in, or undertaking of the connecting by taking advantage of the impairment.

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16
Q

Crimes Act 1961

S138 (1) (2) (4) differences and penalties

A

138(1) - has exploitative sexual connection with a person with significant impairment (10 years)
138(2) - attempts to have exploitative sexual connection with a person with significant impairment (10 years)
138(4) - who exploitatively does an indecent act on a person with a significant impairment (5 years)

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17
Q

Definition 138(6)

Person with significant impairment

A

A significant impairment is an intellectual, mental or physical condition or impairment (or a combination of 2 or more) that affects a person to such an extent that it significantly impairs the persons capacity -
a) to understand the nature of the sexual conduct OR
b) to understand the nature of decisions about sexual conduct OR
c) to forsee the consequences of decisions about sexual conduct OR
d) to communicate decisions about sexual conduct

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18
Q

Ingredients of

S130 CA 1961

A

1) Sexual connection is incest if:
a) it is between 2 people whose relationship is that of parent and child, sibling/half sibling, grandparent/grandchild AND
b) the person charged knows of the relationship
2) Everyone 16 and over is liable - 10 years

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19
Q

S35 Evidence Act 2006

When can a previous consistent statement be admitted?

A

As rebuttal evidence

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20
Q

What is the primary objective of a medical examination?

A

To ensure the victims physical, mental, sexual health and safety.
Secondary objective is the opportunity to obtain trace evidence.

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21
Q

What you should explain to a victim prior to a medical exam

A
  • That the examination will be completed by a medical forensic practitioner specially trained in examining victims of sexual assault
  • The benefits of a full medical forensic exam including to their physical, sexual and mental health
  • How the exam can help Police obtain evidence to apprehend the offender
  • The expected time frame for the examination and, if appropriate, possible outcomes of the examination
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22
Q

CALM TEA acronym

A

C - conduct dealings in a sensitive and concerned manner
A - accept they are telling the truth until there is evidence to the contrary
L - listen to what they have to say, allow them to give their account, even if it is just vent feelings
M - Medical exam, establish if required

T - treat them courteously
E - explain the processes you are following and why, explain why you need to ask certain questions
A - advise them of local counselling services

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23
Q

Crimes Act 1961

128B

A

Punishment for sexual violation is a term of imp not exceeding 20 years, and imp. should be imposed upon conviction unless there are special circumstances that justify a departure from that rule.

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24
Q

Crimes Act 1961

S129(1)

A

Attempted sexual violation
(10 years)

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25
Q

Crimes Act 1961

S144A

A

Sexual conduct with children outside of NZ

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26
Q

Crimes Act 1961

S144A and S144B explain

A

144A - If you committ S132(1-3) or S134(1-3) outside of NZ, you are liable to be arrested and charged upon return to NZ.
However 144B specifies Attorney General must given approval prior to any charges filed.

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27
Q

Evidence Act 2006

Explain S88(2)

A

The judge must not grant permission unless satisfied that the question to be put, evidence to be given, or statement or remark to be made is of *sufficient direct relevance *to the facts in issue and its exclusion would be contrary to the interest in justice.

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28
Q

What three things must the Crown prove for sexual violation

A

The Crown must prove that at the time of the defendants conduct he:
1. Intended to have sexual connection with the complainant AND
2. The complainant did not consent to the intended sexual connection AND
3. The defendant did not believe on reasonable grounds that complainant was consenting.

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29
Q

Regarding consent what must the crown prove?

A

Subjective/objective test
1. The complainant did not consent to the sexual act (subjective) AND
2. The offender did not believe the complainant was consenting (subjective) OR
3. If the offender believed she was consenting, the grounds for such a belief were not reasonable (objective)

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30
Q

In negating consent, the Crown has to prove one of three things

A
  1. The victim did not consent OR
  2. The victims consent was not valid OR
  3. The accused did not believe on reasonable grounds that the victim was consenting
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31
Q

ASA guidelines

What is the purpose of a preliminary interview?

A

To gain a better understanding of what has happened and to determine:
- What further investigative actions are necessary; AND
- Whether an offence may have occurred; AND
- Whether the victim wants to make a formal complaint.

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32
Q

R v Leeson

A

The defintion of indecent assault…is an assault accompanied by circumstances of indecency

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33
Q

Difference between rape 128(1)(a) and ULSC 128(1)(b)

A

Rape is a specific form of unlawful sexual connection that involves the penetration of the complainants genitalia by the offenders penis.

ULSC has a wider meaning, and captures all forms of non-consensual sexual connection other than those that amount to rape.

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34
Q

R v Forrest and Forrest

A

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.

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35
Q

What two pieces of evidence are required to prove age?

A
  • The complainants birth certificate
  • Independent evidence that identifies the complainant as the person name in the birth certificate
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36
Q

Consent of child

Case law

A

Cox v R: save in exceptional and rare circumstances…even where she indicates an agreement to the act occurring…no reasonable adult would have grounds for believing that a 10 or 11 year old girl has the experience or maturity to understand the nature and significance of the act.

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37
Q

S2 Crimes Act 1961

Define sexual connection

A

Connection effected by the introduction into the genitalia or anus of one person, except for genuine medical purposes of:
- Any part of the body of another person, OR
- Any object held or manipulated by another person OR
- Any connection between the mouth and tongue of one person and any part of the genitalia or anus of another OR
- The continuation of any connection described in the above

38
Q

Define unlawful sexual connection

A

Person A has ULSC with person B, if person A has sexual connection with Person B;
- without Person B’s consent AND
- without believing on reasonable grounds Person B was consenting to the connection

39
Q

Consent definition

A

A persons conscious and voluntary agreement to something desired or proposed by another

40
Q

S128A

When allowing sexual activity does not amount to consent (7 examples)

A
  • Lack of protest/resistance
  • Force, threat or fear of force
  • Asleep/unconscious
  • Affected by alcohol or drugs cannot consent or refuse to consent
  • Affected by intellectual/mental/physical condition or impairment to such a degree cannot consent or refuse to consent
  • Mistake as to identity
  • Mistaken about the nature and quality of the activity
41
Q

S128A

“Allows” sexual activity refers to..

A

Allows includes acquiesces, submits to, participates in, and undertakes sexual activity - sexual connection or indecent act, that without consent would be indecent assault

42
Q

Indecent Assault (section and elements)

A

S135
A person
Indecently assaults
Another person

43
Q

Define genitalia with case law

A

R v Koroheke: The genitalia comprise the reproductive organs, interior and exterior… they include the vulva and labia, both interior and exterior, at the opening of the vagina.

44
Q

Define genitalia - Crimes Act interpretation

A

Genitalia includes a surgically constructed or reconstructed penis analogous to naturally occurring male or female genitalia (whether the person concerned is male, female or indeterminate sex).

45
Q

Penis - Crimes Act definition

A

Penis includes a surgically constructed or reconstructed organ analogous to an naturally occurring penis

46
Q

Two elements required to prove S129(2) CA 1961 offence

A

Assault with intent to commit sexual violation - need to prove:
- The offender assaulted the victim
- The offender intended to commit sexual violation

47
Q

Assault with intent to commit sexual violation - two types of intent

A

The offender may assault the victim:
- In the hopes that the complainant will then change their mind and consent to the act
- Intent to commit rape or sexual violation regardless of whether the complainant changes their mind

48
Q

S2 CrImes Act 1961

Assault definition

A

The act of intentionally applying or attempting to apply force to another, directly or indirectly, or threatening by any act or gesture to apply such force to another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose.

49
Q

Four advantages of visually recording interviews

A
  1. Greater quality and quantity of information obtained
  2. Minimises trauma to the witness by simplfying the process and having their video played as evidence in chief
  3. Reducing contamination by the interviewer through the process of transposing the interview into a statement
  4. Providing a valuable means for a witness to refresh their memory prior to proceedings
50
Q

Evidence Act 2006

S105

A

Alternate ways of giving evidence:
a) in the courtroom but unable to see the defendant
b) from an appropriate place outside the courtroom, either in NZ or elsewhere or
c) by video record made before the hearing of the proceeding

51
Q

Evidence Act 2006

S107

A

Alternative ways of giving evidence by child witnesses in criminal proceedings

52
Q

Evidence regulations act 2007

Under reg 28 what must Police ensure in relation to video records?

A

Police must ensure a typed transcript of a video record to be used in proceedings is given to the defendant or defendants lawyer as soon as practicable after the defendant has pleaded NG.

53
Q

Evidence Act 2006

S103(3) - grounds on which a direction can be made to witness giving evidence in alternative way

A

a) the age or maturity of the witness
b) the physical, intellectual, psychological or psychiatric impairment of the witness
c) the trauma suffered by the witness
d) the witness’s fear of intimidation
e) the linguistic or cultural background or religious beliefs of the witness
f) the nature of the proceeding
g) the nature of the evidence the witness is expected to give
h) the relationship of the witness to any party in the proceeding
i) the absence or likely absence of the witness from New Zealand

54
Q

Crimes Act 1961

S195A

A

Failure to protect a child or vulnerable adult

55
Q

Crimes Act 1961

S195A explained and penalty

A

10 years
Imposes criminal liability in some situations where it is know a child (or vulnerable adult) is at risk of harm but 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
- (3) A person under 18 at the time cannot be charged with this offence

56
Q

Crimes Act 1961

Criminal liability for 195A

A

Liability will arise if a person has frequent contact with a child or vulnerable adult AND:
- Knows (mens rea) they are at **risk **of death, GBH, or sexual assault as a result of the acts or omissions of another person AND:
- **fails (actus reus) to take reasonable steps to protect** the victim from that risk

57
Q

Crimes Act 1961

S195A - what must be proved when person at risk is a child

A
  • That the child was under 18 at the time of the offence AND
  • That the offender was over 18 AND
  • The defendant (being a member of the same household or staff member) had frequent contact with victim AND
  • The defendant had knowledge of the risk of harm to the child
58
Q

Crimes Act 1961

S195A - liability of extended family

A

A person may be regarded as a member of a household even if they do not live in the same household but are so closely connected with the household that it’s reasonable in the circumstances to regard them as a member of the household.

59
Q

ASA procedure

Key part of interactions with victim

A

Communicate with them and keep them informed

60
Q

Victims Rights Act 2002

S4 definition

A

A victim means:
- a person against whom an offence is committed by another person AND
- a person who through/by means of an offence committed by another suffers physical injury or loss of/damage to property AND
- a parent/legal guardian of victim (unless they are the offender) AND
- a member of the family of a victim who dies or is incapable following an offence (unless they are the offender)

61
Q

ASA process

12 steps (ICPP IMFIRP FP)

A
  1. Initial action on contact
  2. Case referral
  3. Providing specialist support
  4. Prelim interview
  5. Information feedback
  6. Medical exam
  7. Formal interview
  8. Investigation and evidence assessment
  9. Resolution options
  10. Prosecution
  11. Final actions and recording
  12. Preventative opportunities and responsibilites
62
Q

What age does ASA apply to?

A

18 or over at the time of making the complaint

63
Q

ASA

List 4 things a victim should refrain from prior to a med exam

A
  • No eating or drinking
  • No going to the toilet (if necessary, use a toxicology kit to capture the urine and ask them not to wipe)
  • No washing or showering
  • No washing of hands or biting of fingernails
64
Q

ASA

What should you explain to a victim before attending a med exam

A
  • The exam will be conducted by a medical forensic practitioner specially trained in examining victims of sexual assault
  • The benefits to their physical, mental and sexual health and to help Police obtain evidence
  • Expected timeframes for the examination
  • Ask if they have a preference for a male or female doctor
65
Q

ASA

What should you tell a medical forensic pracitioner about the victim prior to exam?

A
  • Age and gender
  • Where the assault occurred
  • Brief outline of info
  • Victims wishes on gender of Dr
66
Q

Crimes Act 1961

S129(2)

A

Assault with Intent to commit sexual violation (10 years)

67
Q

Crimes Act 1961

S131 (1) (2) (3)

A

Sexual conduct with a dependant family member
1) has sexual connection (7 yrs)
2) attempts sexual connection (7 yrs)
3) does an indecent act (3 yrs)

68
Q

Crimes Act 1961

S131 - dependant family member definition

A

a) If the other person has power or authority over him/her and is:
- his/her parent, step parent, foster parent, guardian, uncle or aunt OR
- a parent/step parent/foster parent/guardian/aunt uncle of the above OR
- a child of his/her parent or step parent OR
- the spouse or de-facto partner of anyone above
OR
b) if they are members of the same family, whanau or other cultural family group and theo other person is not one of a)** BUT** has a responsibility for or significant role in his’her care or upbringing
OR
c) if he/she is living with the person as a member of their family but not someone listed in a) BUT has power/authority over him/her AND is responsible for or has significant role in his/her upbringing

69
Q

Crimes Act 1961

S131 - what do key things need to be proved?

A
  • That as well as holding one of the roles constituing a dependant family member the person;
  • Must have had power or authority over the dependant person
70
Q

Crimes Act 1961

S129A

A

Sexual conduct with consent induced by certain threats

71
Q

CPT

Time frames for child abuse

A

Critical - 24 hrs
Very urgent - 48 hrs
Urgent - 7 days

72
Q

Crimes Act 1961

S127

A

There is no presumption of law that a person is incapable of sexual connection because of his/her age

73
Q

Crimes Act 1961

S195A ingredients

A
  • Everyone
  • Being a person who has frequent contact
    With a child or vulnerable adult
    AND
  • Knows that the victim is at risk of death, GBH or sexual assault
    AND
  • Fails to take reasonable steps to protect the victim from that risk
    10 years
74
Q

Crimes Act 1961

To be guilty of S129(1) what must the crown prove (attempt)?

A

The defendant must have progressed past the stage of preparation and started a process intended to lead to the commission of the full offence.

75
Q

Crimes Act 1961

S72 Attempts

A
  • Everyone who, having an intent 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 in the circumstances it was possible to commit the offence or not
76
Q

Intent

A

“aim, object or purpose” Simester & Brookbanks
Must be more than involuntary or accidental

77
Q

Crown must prove (intent) for S129(1) and 129(2)

A

The crown must prove the defendant intended to commit the full act of sexual violation and acted as he did for the purpose of acheiving that aim.

78
Q

R v Collister

A

Circumstantial evidence from which an offenders intent may be inferred include;
- Actions done and words spoken before, during and after the act
- The surrounding circumstances
- The nature of the act itself

79
Q

Attempts

R v Harpur

A

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.”

Acts when viewed in isolation may not constitute an attempt - when viewed cumulatively constitute an attempt.

80
Q

Sufficiently proximate

R v Harpur

A

The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops… the defendants conduct (may) be considered in its entirety. Considering how much remains to be done…is always relevant, though not determinative.

Laymans terms:
Cumulative assessment may allow the court to infer that the defendant intended to commit the full offence, and had started to do so, even though he may still have been several steps removed from the ultimate act.

81
Q

S129(2) Crimes Act 1961

What must be proved at the time of the assault (mens rea)

A

It must be proved that at the time the defendant assaulted the complainant:
- he intended to have sexual connection with the complainant AND
- the complainant did not consent to the sexual connection AND
- the defendant did not believe on RG that the complainant was consenting

82
Q

R v Court

A

Indecency means “conduct that right thinking people will consider an affront to the sexual modesty of the complainant.”

83
Q

R v Dunn

A

Objective test for indecency
Court of Appeal held that indecency must be judged in light of the time, place and circumstance. It must be something more than trifling and be sufficient to “warrant the sanction of the law”

84
Q

S2 Crimes Act 1961

Indecent act

A

For the purposes of this act, a person does an indecent act on another person whether he or she:
a) does an indecent act with or on the other person; OR
b) induces or permits the other person to do an indecent act with or on him/her.

85
Q

Crimes Act 1961

S134(4) - exception to S134 charge

A

No person can be convicted of a charge under 134 if he or she was married to the YP at the time of the sexual connection or indecent act.

86
Q

Crimes Act 1961

S135 - proof of assault

A

135 requires proof of assault, though it does not have to be forceful or violent - a gentle caress may suffice.
May also include attempts to apply force and threats by act or gesture.

87
Q

Crimes Act 1961

Indecent assault - consent defence

A
  • Consent is a defence for indecent assault with adult complainants
  • Consent of YP under 16 - no defence
  • Consent is objective from complainants POV - 128A applies
88
Q

Crimes Act 1961

S129A

A

Sexual conduct with consent induced by certain threats

89
Q

Crimes Act 1961

S129(2) elements

A

Assault with intent to commit sexual violation

  • A person
  • Assaults another person
  • With intent to commit sexual violation of the other person
90
Q

Crimes Act 1961

S131(1) elements

A

Sexual conduct with a dependant family member
- Everyone
- Has sexual connection
- With a dependant family member under 18 years

91
Q

Consent

R v Koroheke

A

Consent freely given rather than submission to something unwanted or avoidable.

92
Q

128(1) Crimes Act 1961

Sexual violation defined

A

Sexual violation is act of a person who -
a) rapes another person; OR
b) has unlawful sexual connection with another person

DDC Sex Module (2 decks)

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