Sexual Conduct with a Child Under 12

Question 1

Section and Penalty

Answer 1

Section 132(1), (2), or (3) CA61

14, 10, or 10 Years Imp

Question 2

Elements

Answer 2

• Everyone who
• (1) Has sexual connection with
• (2) Attempts to have sexual connection with
• (3) Does an indecent act on
• A child

Question 3

Sexual Connection

Answer 3

S2 CA61

Sexual connection means—
(a) connection effected by the introduction into the genitalia or anus of one 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 person’s genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)

Question 4

Introduction/Penetration

Answer 4

S2(1A) CA61

Introduction and penetration have the same meaning. Introduction to the slightest degree is enough to effect a connection.

Question 5

Proof of penetration is required

Answer 5

Proof may be provided by:

• Complainants evidence
• Medical examinations (DNA, injuries)
• Accused’s admissions

Question 6

Genitalia

Answer 6

S2 CA61

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

Question 7

R v Koroheke

Genitalia

Answer 7

R v Koroheke

The genitalia comprise the reproduction organs, interior and exterior…. they include the vulva and the labia, both interior and exterior at the opening of the vagina.

Question 8

Penis

Answer 8

S2 CA61

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

Question 9

Indecent Act

Legislation

For the purposes of this Act, one person does an indecent act on another person whether he or she—

Answer 9

S2(1B) CA61

For the purposes of this Act, one 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 or her.

Question 10

R v Court

Answer 10

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

Question 11

Child

Answer 11

S132(6) CA61

In this section,—
(a) child means a person under the age of 12 years

Question 12

R v Forrest and Forrest

Proving Age

Answer 12

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”

In practice this generally involves producing the complainant’s birth certificate in conjunction with independent evidence that identifies the complainant as the person named in the certificate.

Question 13

If such an act is done with the consent of the child, it is immaterial whether:

Answer 13

• the offender does the act on the child
• the child does the act on the offender
• the act is mutual.

Question 14

Not a defence

Legislation

Answer 14

S132(4) and (5) CA61

(4) It is not a defence to a charge under this section that the person charged, believed that the child was of or over the age of 12 years.
(5) It is not a defence to a charge under this section that the child consented.

Question 15

No Presumption because of Age

Answer 15

S127 CA61

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