List the two foms of sexual violation
- Unlawful sexual connection
Discuss the penalty provisions for sexual violation as set out in s128B of the Crimes Act 1961
The punishment for sexual violation is imprisonment for a term not exceeding 20 year, and imprisonment should always be imposed on conviction unless there are special circumstances that justify a departure from the rule.
Define the term 'genitalia'.
Genitalia are the external organs of reproduction in males and females. As the term literally means the organs of generation. It does not include pubic hari or breasts. It also includes surgically construted organs.
In negating consent, the crown has to prove on of three things. List the three things.
- The victim did not consent, or
- The victims consent was not valid, or
- The accused did not believe on reasonable grounds that the victim was consenting.
Discuss the two elements that need to be proved in a charge of assault with intent to commit sexual violation, section 129 crimes act 1961.
- The offender assaulted the victim and
- Intended to commit sexual violation
What is the definition of 'consent'.
'Consent' is a persons conscious and voluntary agreement to something desired or proposed by another
Define 'sexual connection'
Sexual connection means....
a) Connection effected by the introduction into the genetalia or anus of one person, otherwise than for genuine medical purposes, of:-
- A part of the body of another person, or
- An obect held or mnipulated by another person, or
b) connection between the mouth or tounge 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 (b)
Discuss the statutory defence for s13A - sexual conduct with a young person under 16 years.
There is a statutory defence for sexual conduct with a young person (s134A). This statutory defence applies only when:
- The person charged can show they took reasonable steps to establish the young person was aged 16 or over, and
- The person charged belieed on reasonable grounds that the young person was aged 16 or over, and
- The young person consented to that sexual connection
Define sexual conduct with a child under 12.
Sexual conduct with a child under 12 is:
- Sexual connection with a child
- Attempted sexual connection with a hild; and
- Does an indecent act on a child
Discuss whether a 16 year old girl can be charged with having consensual sex with a 14 year old boy.
Yes, the girl can be charged as it is the offence of sexual conduct with a young person under 16 years (S134, Crimes Act 1961)
Define 'indecent act'
'Indecent act' is generally accepted as an act accompanied by circumstances of indecency.
Indecent acts are usually consensual acts. IN age-specific sexual offences, doing an indecent act with a child or young person can also include indecently assaulting that child or young person.
List 3 grounds on which a direction can be made under s103(3) of the evidence act 2006 in regards to a witness giving evidence in an alternative way.
(3) A direction under subsection (1) that a witness is to give evidence in an alternative way, may be made on the grounds of -
(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 that the witness is expected to give
(h) The relationship of the witness to any party to the proceeding
(i) The abscence or likely abscence of the witness from NZ
(j) Any other ground likely to promote the ourpose of the act
Discuss the requirement under reg28 of the evidence regualations 2007.
Prosecutor to give transcript to defence before preliminary hearing or defended summary hearing.
(1) The prosecutor must ensure a typed transcript of a working copy is given to the defendant or the defendants lawyer-
(a) If there is to be a prelim hearing, at leats 7 days before the date on which a video record is given in evidence at prelim hearing
(b) If the defendant is to be tried summariy, as soon as it is reasonably practible after the defendant has pleaded not guilty
(2) The transcript is to be prepared by Police
(3) The Court may adjourn the hearing to allow a further time for the defendant to consider transcript if satisfied that sub-clause (1) has not been complied with.
List three ways under S10 that a witness may give evidence.
The witness may give evidence:
1)While in the courtroom but unable to see the defendant or some other specified person (Screens), OR
2) From an appropriate place outside the courtroom, either in New Zealand or elsewhere; (CCTV, OR
3) By a video record made before the hearing of the proceedin. (Video recording)
List 4 things victims should refrain (where possible) before a medical examination.
Remind the victim:-
1) No eating or drinking
2) No going to the toilet (If necessary, use a toxicology kit to capture urine and ask female victim not to wipe)
3) No washign or showering
4) No washing of hands or biting fingernails
List the points that you would cover with a victim to explain the medical forensic examination procedure.
-That the examination will be conducted by a medical forensic practitioner specially trained in examining victims of sexual assault.
- The benefits of a full medical forensic examination including:-
a) The potential benefit to their physical, sexual and mental health
b) How the examination can help Police obtain evidence to apprehend the offender.
- The expected time for the examination and, if appropriate, possible outcomes of the examination
- Ask the victim if they have any concerns about the gender of the practitoner conducting the examination and advise you will do your best to acomodate their wishes.
When interacting with victims of sexual offences, what actions should you take to provide a safe and secure environment in which they may regain some conrtol of their lives.
- Conduct your dealings in a sensitive and concerned manners
- Accept they are telling the truth until/unless there is evidence to prove the contrary
- isten to what they tell you, giving them the opprtunity to tell their account in their words, even just to vent their feelings.
- Establish whether they require medical attntion
- Treat them courteously
- Explain the process you are following and why you need to follow that process and ask certain questions.
- Advise them of the local counselling services available.
List the three areas to consider when determining "seriousness of physical abuse" (referral as a CPP case)
- The action of the abuse
- THe injury inflicted, and
- The circumstances
List four Police responsibilities to victims and their rights.
- All obligations under the victims rights act 2002 must be met and all victim contact recorded.
- Victims must be given progress report of their investigation within 21 days.
- Victims must be kept updated and informed of the outcome of the investigation , including no further avenues of enquiry or the reason for charges not being laid.
- As soon as the offender is arrested and charged Police must determine whether it is a S29 offence. If so, the victim must be informed of theri right to register on the Victim Notification System
- Victims muct be informed of the outcome of the case and the case closure. Ensure any property belongign to the victim is returned promptly
Define 'Serious child abuse' and circumstances where Police would remove a child from a household.
- Sexual abuse
- Serious physical abuse
- Serious wilful neglect
- Serious family violence where a child is a witness
- All allegations agaiasnt CYF approved caregivers that involve serious chud abuse
- All allegations agaianst CYF employees and Police that involve serious child abuse
In relation to child abuse investigations, define the term 'child centred timeframes',
Timeframes that are relative to the childs age and cognitive ability. The younger the child, the quicker response required.
Explain Section 44 of the evidence act.
Generally, no evidence or questions (except with judges permission) can be put to the complainant about their sexual experiances with any person other than the defendant.
Also subject to the prpensity rule. Evidence of the victims propensity to act in a certin way with the defendant, including exually, may be offered as evidence with the udges permission
What are the three things the Crown MUST prove in relation to an indecent assault?
- The defendant intentionally assaulted the victim
- the circumstances accompanying the assault were indecent
The defendant intended the conduct that reasonable person would find indecent
When is the offence of sexual exploitation of a person with a significant impairment complete?
A person has exploitative seual connection with a person with a significant impairment 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 persons acquiescence in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment.
When is the offence of sexual grooming complete?
- When the parties meet, OR
- The accused travels or makes arrangements to meet the complainent with the relative intent.
Explain Section 195A, Crimes Act 1961 in relation to what is necessary to prove criminal liability for failing to protect a child.
Imposes criminal liability in some situations where it is known a child or vulnerable adult is at risk of harm but no action is taken.
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
Liability arises if such a person has frequent contact with victim and:
- Knows the victim is at risk of death, GBH or sexual assault as a result of the acts or omissions of another person; and
- Fails to take reasonable steps to protect the victim from that risk
Explain S87 of the evidence act 2006 in relation to the victims address
Protects witness from having to state theri address and having questions put to them about that information. Includes not only name and number of the street but also the name of town or community the witness lived in.
These details may be disclosed if the judge decided that are directly relevant to the facts in issue.
Explain S129A (5) of the Crimes Act 1961 in relation to Sexual conduct with consent by certain threats.
- A threat that the person making the threat or some other person will commit an offence that-
a) Is punishable by imprisonment; but
b) Does not involve the actual or threatened application of force to any person; and
A threat that the person making the threat or some other person will make an accusation or disclose 9whether true or false) about misconduct by any person (Whether lving or dead) that is liely to damage seriously the reputation of the person against or about whom the accusation or disclosre is made; and
A threat that the person making the threat will make improper use, to the detriment of the person consenting, of a power or authority arising out of -
a) An occupational or vocational position held by the person making the threat
b) A commercial relationshp existing betwen the person making the threat and the person consenting
Discuss Case Law - R V LEESON
"The definition of indecent assault....ia an assault accompanied by circumstances of indecency"
Under S131A of the Crimes Act 1961, What is the definition of 'dependant family member'?
If the other person has power or authority over him or her and is
a) his or her parent, step - parent, foster parent, guardian, uncle or aunt; OR
b) A parent step-parent, or foster parent of a person listed in a)
C) a child of his or her parent or step - parent or
d) the spouse or de facto partner of a person described above; OR
if they are members of the same family, whanau, or other cultrally recognised family group and the other person -
a) is not a person referred to above, BUT
b) has a responsibilty for, or a significant role in, his or her upbringing or
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 above but has;-
Power or authoiryt over him or her and
a responsibilty for , or a significant role in, his or her care or upbrining