Unlawful sexual connection
Section 128(3), Crimes Act 1961
Person A has unlawful sexual connection with person B if person A has sexual connection with person B—
(a) without person B’s consent to the connection, and
(b) without believing on reasonable grounds that person B consents to the connection.
s128(2), CA 1961
Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis
a) without person B’s consent to the connection and
b) without believing on reasonable grounds that person B consents to the connection.
Section 2, Crimes Act 1961
(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).
What does the Crimes Act say about the meaning and degree of introduction/penetration?
s2(1A), CA 1961
Introduction to the slightest degree is enough to effect a connection
What are the three ways in which proof of penetration may be provided.
- complainants evidence
- medical examination (DNA, injuries)
- accused’s admissions
S2, CA 1961
Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male or female or of indeterminate sex).
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.
s2, CA 1961
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).
What is the provision in s127?
s127, CA 1961
No presumption because of age
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
Outline the subjective/objective test in relation to consent
The Crown must prove that
the complainant did not consent to the sexual act (subjective) AND
the offender did not believe the complainant was consenting (subjective) OR
if he did believe she was consenting, the grounds for such a belief were not reasonable (objective)
R v Cox re consent.
Consent must be “full, voluntary, free and informed…freely and voluntarily given by a person in a position to form a rational judgement”.
R v Gutuama
Under the objective test the Crown must prove that no reasonable person in the accused’s shoes could have thought that the complainant was consenting.
Explain the provisions relating to matters that do not constitute consent.
Crimes Act 1961, Section 128A
Circumstances in which a person allows sexual activity but it does not amount to consent:
- force, threat or fear of violence
- lack of protest or resistance
- asleep or unconscious
- affected by alcohol or drugs
- intellectual, mental or physical impairment
- mistaken as to identity
- mistaken as to nature and quality of act
Discuss R v Koroheke re force, threat or fear of force.
R v Koroheke
It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.
What are the two offences under s129?
(1) Attempted sexual violation
(2) Assault with intent to commit sexual violation
s72(1), Crimes Act 1961
Every one 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.
List three examples of circumstantial evidence from which an offender’s intent may be inferred.
- offender’s actions and words before, during and after the event
- surrounding circumstances
- nature of the act itself
What were the findings in R v Harpur re attempts?
R v Harpur
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”.
R v Harpur re acts that may be sufficiently proximate.
R v Harpur
The Court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops…the defendant’s conduct may be considered in its entirety. Considering how much remains to be done…is always relevant, though not determinative.
Crimes Act 1961, Section 2
Assault means 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 threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose
What is required to prove the mens rea element of Assault with Intent to Commit Sexual Violation?
At the time of the defendant’s conduct he
- intended to have sexual connection with the complainant, AND
- the complainant did not consent to the intended sexual connection, AND
- the defendant did not believe on reasonable grounds that the complainant was consenting
Outline Cox v R re consent of a child.
Cox v R
Although we do not exclude the possibility that a child of ten or eleven may be able to give a full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare.
Cox v R re reasonable belief in consent of a child.
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 ten or eleven year old girl has the experience or maturity to understand the nature and significance of the act.
It is not a defence to a charge of sexual conduct with a child that the offender believed the complainant was 12 years of age or over.
Crimes Act definition of child.
A person under the age of 12 years (s132(6)(a))
Discuss how to prove age.
R v Forrest and Forrest
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 victim’s birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
R v Court
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant].”
What are the statutory defences listed in 134(4) and (5)?
(4) Married to the young person
(5) The young person cannot be charged as a party to the offence if the offender was 16 yrs or over at the time
Crimes Act definition of young person.
A person under the age of 16 years (s134(6)(a))
What does the defendant need to prove for a statutory defence to a charge under Crimes Act 1961, Section 134A?
- they had taken reasonable steps to ascertain that the young person was at least 16
- they believed on reasonable grounds that the young person was at least 16
- the young person consented.
Define indecent assault.
R v Leeson
The definition of ‘indecent assault’…is an assault accompanied by circumstances of indecency.
What must be proved for a charge of indecent assault?
- defendant intentionally assaulted complainant
- circumstances accompanying assualt were indecent
- defendent intended conduct that a reasonable person would find indecent
s130, CA 1961
(1) Sexual connection is incest if
(a) it is between 2 people whose relationship is that of parent and child, siblings, half-siblings, or grandparent and grandchild, AND
(b) the person charged knows of the relationship
How is dependent family member defined in s131A(1)(a)?
(a) if the other person has power or authority over him or her, and is
(i) his or her parent, step-parent, foster parent, guardian, uncle or aunt; or
(ii) a parent, step-parent, or foster parent of a person described in subparagraph (i); or
(iii) a child of his or her parent or step-parent; or
(iv) the spouse or de factor partner of a person described in subparagraph (i) or subparagraph (ii) or subparagraph (iii)
How is dependent family member defined in s131A(1)(b)?
if they are members of the same family, whanau, or other culturally recognized 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
How is dependent family member defined in s131A(1)(c)?
if he or she is living with the other person as a member of the other person’s 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.
Section 131B covers Meeting young person following sexual grooming etc. When is this offence complete?
When the parties meet OR the defendant travels OR makes arrangements to meet the complainant WITH the relevant intent.
Summarise s44(1) and (2), Evidence Act 2006 in relation to questions that can be put to the witness.
In a sexual case, no evidence or questions can be put to the complainant about their sexual experience with any person other than the defendant or about their reputation in sexual matters, except with the Judge’s permission.
Summarise s88, Evidence Act 2006.
In sexual cases, protects the complainant from having questions put to them or to a witness about their occupation, or having evidence given or statements/remarks made about their occupation…except with the Judge’s permission.
What is the first step after the preliminary interview?
Re-assess the investigation so far. What further investigative procedures are necessary including:
• public safety and the likelihood of similar or connected further offending
• the need to secure and preserve fragile or diminishing evidence
• securing/containing scene
• identifying/locating witnesses
• identification and/or apprehension of suspect.
What sort of information should be given to victim regarding the Police investigation process and its timing?
initial actions (eg. scene examination) medical/forensic exam formal interview process exhibits court process
In the debrief with the medical practitioner, list 5 topics that need to be covered.
forensic items for ESR
immediate needs of victim
summary of exhibits and possible significance
injuries that need to be photographed
significant disclosures made by victim during exam
Who does the ASAI policy and procedures apply to?
Who does the child protection investigation police and procedures apply to?
Adult: All cases where the victim is 17 yrs or older at the time of making the complaint.
Child: The victim, at the time of making the complaint, is 16 yrs or younger.
When contacting the medical forensic practitioner, what info should you give them?
- advise the age and gender of the victim as this may impact on the suitability of the practitioner
- advise when the sexual assault was believed to have occurred
- give a very brief outline of the information known so far, including whether drugs may be involved and details of the victim’s injuries, level of intoxication or other known health concerns
- if relevant, discuss the victim’s wishes about gender of the examining practitioner
- when necessary, discuss whether a child’s sexual assault complaint should be investigated using the adult sexual assault procedures (or vice versa).
Outline the timeframes for adult and child cases.
Acute - reported within 7 days of the sexual assault
Non-acute - reported at 7 or more days but before 6 mths
Historic - reported after 6 mths of the sexual assault
Critical - in immediate risk of serious harm and the need for immediate protection may be necessary
Very urgent - at risk of harm but not in immediate danger
Urgent - at risk of harm but protected in the short term
Define serious child abuse
Includes but not limited to
Serious physical abuse
Serious wilful neglect
Serious family violence where child is witness
All allegations against CYF approved caregivers that involve serious child abuse
All allegations against employees of CYF and Police that involve serious child abuse
Give 4 examples of things to take to a medical exam.
change of clothing for victim
medical examination kit
relevant information notes
Outline who should conduct a medical examination of a suspect, what they should use, and what you should ask them to do.
Police Medical Officer (who hasn’t examined the victim).
toxicology kit if suspect is drug user
Ask them to: take appropriate samples note any injuries give their opinion on mental condition record any comments or explanations made by suspect
What 6 topics should be considered when completing IJIP?
safety of child joint visits initial interview of child child forensic interview, interview of alleged offender and others collection of forensic evidence referral to medical practitioner
What types of questions should be asked during the preliminary interview of an adult sexual assault victim?
- What, When, Where, Who
- Not Why or How
What are the goals of a medical forensic examination?
Primary - victim’s physical, sexual and mental health
Secondary - opportunity to collect evidence
What are the 3 key areas to determining seriousness of abuse?
The action of the abuse
The injury inflicted
What are the important points to remember regarding the questioning of a child?
If child has made clear disclosure and adult can provide info, DO NOT ask child again.
If unclear what child has said AND no urgent safety issues, DO NOT question further.
If necessary to speak to ascertain safety, ask open ended questions. If becomes clear offence has been committed during questioning, DO NOT question further.
In an ASA investigation, what is the purpose of the preliminary interview?
To gain a better understanding of what has happened and determine:
what further investigative actions are necessary
whether an offence may have occurred
whether the victim wishes to make a formal complaint
Before conducting a medical forensic examination, what should be explained to the victim?
That the examination:
- will be conducted by a medical forensic practitioner specially trained in examining individuals who have been sexually assaulted
- has potential health benefits and can help Police obtain evidence to apprehend the offender
Expected duration (couple of hrs) and possible outcomes
How does the CYPF Act 1989 define a child/young person?
Anyone under 17 is a child or young person.
Outline s42, CYPF Act 1989.
Power to remove a child without warrant. Can only be invoked when police believe on reasonable grounds it is critically necessary to remove child to prevent injury or death.
How is child defined in the Crimes Act?
A person under the age of 12 years (s132(6)(a))
128(1), CA 1961
(1) Sexual violation is the act of a person who
(a) rapes another person or
(b) has unlawful sexual connection with another person
If an indecent act is done with the consent of a child or young person it is immaterial whether…
- the offender does the act on the child/young person
- the child/young person does the act on the offender
- the act is mutual