Sexual Offending

Question 1

When is the offence of sexual grooming complete.

131B

Answer 1

• when the offender intentionally meets the young person OR
• when the offender travels with intention of meeting the young person OR
• when the offender arranges for or persuades the young person to travel with the intention of meeting him or her (arranges a meeting)

Question 2

When can a previous consistent statement be admitted.

Answer 2

Previous consistent statements will really only be admissible as rebuttal evidence

Question 3

How far out must a prosecutor give the transcript to the defence before preliminary hearing or defended summary hearing.

Answer 3

• at least 7 days

Question 4

Sexual Connection (S2, CA1961)

Answer 4

a) Connection effected by the introduction into the genitals or anus of one person, except for genuine medical purposes
i) any part of the body of another person, or
ii) any object held or manipulated by another person

or

b) Any connection between the mouth or tongue of one person and any part of the genitals or anus of another

or

c) The continuation of any connection described in paragraphs a or b.

Question 5

Unlawful Sexual Connection

Answer 5

Person a has unlawful sexual connection with person b if person a has sexual connection with person b

i) without person b’s consent to the connection
ii) without believing on reasonable grounds that person B was consenting to the connection

Question 6

Defence under s134?

Answer 6

• prior to the act, they had taken reasonable steps to ascertain that the young person was at least 16, and
• at the time of the act, they believed on reasonable grounds that the young person was at least 16, and
• the young person consented.

Question 7

Police would remove a child from a household…

Answer 7

• In cases involving:

Serious Wilful neglect

Serious physical abuse

Sexual assault

When a child is witness to a serious assault

Any allegations made against a CYF carer involving serious physical abuse

Any allegations made against CYF staff or Police involving serious physical abuse

Question 8

S195 CA 1961, What is necessary to prove criminal liability in failing to protect a child…

Answer 8

That the child was Under the age of 18 at the time of the offence; AND
The defendant was over 18; AND
The defendant was a member of same household as the victim or a staff member at hospital,institution or residence of victim and had frequent contact with them; AND
The defendant had knowledge of the risk of harm to the child.

The offence applies to: members of the same household as the victim
staff of any hospital, institution or residence where the victim resides

Criminal liability will arise if the person has frequent contact with the child or vulnerable adult and

KNOWS (mens rea) the victim is at risk of death, GBH or sexual assault as a
result of the unlawful acts or omissions of another person; and

FAILS (actus reus) to take reasonable steps to protect the victim from that risk

Question 9

In what other ways can a witness give evidence?

Answer 9

• while in the courtroom but unable to see the defendant or some other specified person (Screens)
• from an appropriate place outside the courtroom, either in New Zealand or elsewhere (CCTV)
• by a video record made before the hearing of the proceeding (DVD)

Question 10

Before attending a Medical Examination, what should you explain to a victim?

Answer 10

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:
• potential benefit to their physical, sexual and mental health
• how the examination can help Police obtain evidence to apprehend the offender

-the expected time frame for the examination and, if appropriate, possible
outcomes of the examination

Question 11

What are the three areas to consider in determining whether physical abuse is serious and there meets the threshold for referral as a CPP case?

Answer 11

the action of the abuse

• the injury inflicted, and
• the circumstances (factors of the case)

3 initial steps
Referral - info sharing between agencies
Consultation - discussion at appropriate levels
Agreement - initial action plan - Initial Joint Action Plan

Question 12

Can a child aged 12 consent to sexual intercourse?

Exceptional and rare circumstances

Answer 12

Yes in rare and exceptional circumstances.

R v COX
A child of 10 or 11 may be able to give full, voluntary and free consent to sexual intercourse, this would be exceptional if not rare. She may know what sex is, however cannot understand the significance of the act. Therefore it will not be legal consent

No reasonable adult would have grounds for believing the 10 or 11 y old has the experience or maturity to understand the significance of the act.

Question 13

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

Answer 13

Yes it is, an adoptive parent is a ‘parent’ thus incest.

Question 14

At what age does a file become an ASAT file?

Answer 14

17 years or older at the time of making the complaint - NOT 16

Question 15

No question can be put to the victim regarding… (S44, Evidence Act 2006)

Answer 15

-previous sexual history with any person other than the defendant

Question 16

Things must the Crown prove in relation to an Indecent Assault?

Answer 16

• defendant intentionally assaulted the complainant
• the circumstances accompanying the assault were indecent

-the defendant intended the conduct that a reasonable person would find
indecent

Question 17

What are the three categories of file in relation to ASA?

Answer 17

Acute/non-acute/historic

Question 18

Define Consent

Answer 18

Consent is a persons conscious and voluntary agreement to do something desired or proposed by another.

Question 19

R v LEESON

Answer 19

The definition of ‘indecent assault’… is an assault accompanied with circumstances of indecency.

Question 20

S128A

The following circumstances do not constitute consent:

Answer 20

The following circumstances do not constitute consent:

• not offering physical resistance do to use of force, fear of force or threat of force
• asleep or unconscious
• affected by drugs or alcohol
• mental or physical impairment
• mistaken ID
• mistaken as to nature and quality of the act

Question 21

Before attending a MEK, what would you remind the victim?

Answer 21

• no eating or drinking
• no going to the toilet (if necessary, use a toxicology kit to capture urine and ask the female victim not to wipe)
• no washing or showering
• no washing of hands or biting fingernails

Question 22

In certain circumstances S87 EA2006, the Judge can ask the witness to state their address details. In what circumstances will this occur?

Answer 22

• if the judge determines that they are directly relevant to the facts in issue and that to exclude them would be contrary to the interest of justice.

Question 23

When is the offence of having exploitative sexual connection with a person with a significant impairment complete:

138 CA 61 - 10 years

asp u

Answer 23

(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.

Question 24

R v Kaitamaki

Answer 24

If, after he penetrated a woman, a man realises that she is not consenting but he continues, the act of intercourse then becomes rape

Question 25

No presumption because of age

Answer 25

Sec 127 | There is no presumption of law that a person is incapable of sexual connection because of his r her age

Question 26

What must be proved beyond reasonable doubt in all cases of sexual violation?

Answer 26

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 offender did not believe the complainant was consenting OR If he did believe she was consenting, the grounds for such belief were not reasonable

Question 27

Child

Answer 27

S132 (6) (a) | Child means a person under 12 years of age

Question 28

Indecent act on a child 132 (3) | It is immaterial if:

Answer 28

The offender does the act on the child The child does the act of the offender The act is mutual

Question 29

Section 134 (6) (a)

Answer 29

Young person means a person aged under 16 years

Question 30

What are the 3 offences under 134

Answer 30

Having sexual connection 134(1) Attempts to have sexual connection 134 (2) - 10 years Does an indecent act 134 (3)

Question 31

Incest 130(1) - 10 years if 16 and over

Answer 31

(1) Sexual connection is incest if (a) it is between two people whose relationship is that of: Parent and child (includes adoptive) Siblings Half siblings Grandparent and grandchild AND (b) The person charged knows of the relationship (2) everyone over 16 years who commits incest is liable to imprisonment for a term of 10 years

Question 32

Indecent Assault - Crown must prove 3 things

Answer 32

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

Question 33

Sexual conduct with a dependant family member

Answer 33

Section 131 (1) 7 - has sexual conduct with a dependant family member under the age of 18 years (2) 7 - Attempts to have....... (3) 3 - Does an indecent act of a dependant family member under the age of 18 years (4) Dependant family member cannot be charged (5) Consent is not a defence

Question 34

Dependant Family Member defined

Answer 34

131A(1) CA 61 Dependant family member defined For the purposes of section 131, one person is a dependant family member of another person - (a) if the other person has power of 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 a 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 defacto partner of a person described in subparagraph (i) or (ii) or (iii); or (b) If they are members of the same family, whanau, or other culturally recognised family group, and the other person - (i) is not a person referred to in paragraph (a); but (ii) has responsibility for, or significant role in, his or her care or upbringing or (c) If he or she is living with the other person as a family member of the other persons family, and the other person is not referred to in para (a) but has - (i) power of authority over him or her; and (ii) a responsibility for, or significant role in, his or her car or upbringing

Question 35

129A - Sexual conduct by coercion - 14

Answer 35

induced to the connection by threat..... Does not involve force an accusation of disclosure and misconduct that is likely to seriously damage reputation...

Question 36

Genitalia Sec 2 CA 61 R V Koroheke

Answer 36

Genitalia includes a surgically constructed and reconstructed organ analogous to naturally occurring male and female genitalia (whether the person concerned is male, female, or of indeterminate sex) The genitalia comprise the reproductive organs, interior and exterior...they include the vulva and the labia, both interior and exterior at the opening of the vagina.

Question 37

Sec 4 Evidence Act 2006 | Sexual Case

Answer 37

Means a criminal proceeding in which the person is charged or is waiting to be sentenced or otherwise dealt with for - (a) an offence against 128 - 142A CA61 (b) any other offence of a sexual nature

Question 38

Section 44 Evidence Act 2006 | Protecting victims character

Answer 38

No questions about sexual experience of the complainant with any other person except the defendant EXCEPT WITH THE PERMISSION OF THE JUDGE - directly relevant or not to would be contrary to the interests of justice

Question 39

Section 87 Evidence Act 2006 | Privacy witness address

Answer 39

Address not to be disclosed/No questions/remarks without the permission of the judge - directly relevant or not to would be contrary to the interests of justice

Question 40

Section 88 Evidence Act 2006 | Occupation

Answer 40

No question to be asked or evidence given of complainants occupation - unless Judge satisfied direct relevance and exclusion contrary to the interests of justice

Question 41

Penetration

Answer 41

Introduction and penetration have the same meaning. Introduction to the slightest degree is enough to effect a connection. Sec 2A(1) CA 61 Proof of penetration is required - the complainants evidence - medical examination (DNA, injuries) - accused's admissions

Question 42

Consent R v Cox Matters that do not constitute consent - Sec 128A CA 61

Answer 42

Consent is a persons conscious and voluntary agreement to do something desired or proposed by another 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 Cox Matters that do not constitute consent - Sec 128A CA 61 - Not protesting or resisting - Application of force to self or other, threats of force to self or other, fear of force to self or other - Asleep or unconscious - So affected by drugs/alcohol that they cannot consent - So affected bymental or physical impairment that they cannot consent - Mistaken ID - Mistaken to the nature or the quality of the act

Question 43

Reasonable Grounds

Answer 43

Establishing reasonable grounds is a 3 step process Subjective Test - Step 1 - Absence of Consent What was the complainant thinking at the time? Was s/he consenting? Subjective Test - Step 2 - Belief in Consent If s/he was not consenting did the offender believe the complainant was consenting? What was the offender thinking at the time. Objective Test - Step 3 - Reasonable grounds for belief in consent If the offender believed the complainant was consenting, was that belief reasonable in the circumstances, ie what would a reasonable person have believed if placed in the same position as the defendant? 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 R v Gutuama

Question 44

Penis

Answer 44

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 - Sec 2 CA 61

Question 45

Proving Age

Answer 45

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age R v Forest and Forest In practice this generally involves producing the victims birth certificate in conjunction with independent evident that identifies the victim as the person names in the certificate.

Question 46

Indecent Act Indecency

Answer 46

An act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values. Indecency Indecency means conduct that right thinking people will consider an affront to the sexual modestly of the complainant. R v Court If such an act is done with the consent of the Child(young person), it is immaterial whether: - the offender does the act on the child (yp) - the child (yp) does the act on the offender - the act is mutual ``` Doing an indecent act on a child (yp) includes indecently assaulting the child Sec 132(6)(b) or Sec 134(6)(b) ```

Question 47

Serious Wilful neglect

Answer 47

Wilfully ill-treats or neglects child or permit same likely to cause actual bodily harm, injury to health or mental disorder/disability or expose child to harmful toxic environment eg clan lab, immediate danger

Question 48

IJIP include Response

Answer 48

``` Safety of the child Joint visits needed Initial interview of the child Child forensic interview Referral to medical practitioner ``` Critical or very urgent - within 24 hours Urgent - within 2 full working days

Question 49

What to take to MEK

Answer 49

Evidence Toxicology Kit Change of Clothing MEK Info for Doc

Question 50

MEK post exam procedure

Answer 50

Dr: - Seals, labels all samples - Bags, seals, labels clothing Before MEK sealed - O/C debrief with Dr: - Advise on immediate needs - Verbally summarise exhibits - ID forensic items - ID injuries - Any significant disclosures Dr seals MEK and hands to O/C - Sealed MEK - Tox kit - Removed Clothing Police secure in fridge Police collect and secure any other clothing

Question 51

After MEK

Answer 51

Does victim wish to make formal complaint ``` Reassess and consider - Public Safety -Need to Secure/preserve evidence - Secure/contain crime scene -ID/locate witnesses ID/apprehend suspect ```

Question 52

Information to be provided to Victims

Answer 52

``` ASA support services Info about Police investigation/process/timing Initial actions Med exam Formal interview Clarify expectations on reporting ```

Question 53

Primary objective of Medical Examination

Answer 53

Victims physical, sexual and mental health safety

Question 54

Before medical

Answer 54

``` Contact Dr Advise gender and age When assault occurred Brief outline Arrange time Specialist crisis support ```

Question 55

Consent - What must be proved?

Answer 55

Crown must prove beyond reasonable doubt that: * 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 offender did not believe the complainant was consenting, OR * if the offender did believe the complainant was consenting, the grounds for such belief were not reasonable Therefore must prove: The defendant knew no consent but acted anyway -MENS REA, or The grounds for believing consent were unreasonable

Question 56

128B

Answer 56

Sexual Violation (1) Everyone who commits sexual violation is liable for a term of imprisonment not exceeding 20 years. (2) A person convicted of unlawful sexual connection must be sentenced to imprisonment unless, having regard to the matters stated in s/section (3), the court thinks that the person should not be sentenced to imprisonment. (3) The matters 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.

Question 57

Difference between rape and usc

Answer 57

Penis > Genitalia = Rape Any other part of body > G/A = USC Mouth or tongue > G/A = USC Object held > G/A = USC

Question 58

For a charge under 129(1) Attempts to commit Sexual Violation what must be proved?

Answer 58

Crown must prove that at the time of the defendants conduct he: * INTENDED to have sexual connection with the complaint 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. Reckless = no consent on reasonable grounds

Question 59

R V Harpur - Attempt

Answer 59

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".

Question 60

Indecent Act definition

Answer 60

An act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values. If such an act is done with the consent of the child, it is immaterial whether * the offender does the act on the child * the child does the act on the offender * the act is mutual

Question 61

Indecent Assault S135 - Crown must prove

Answer 61

Crown must prove that: * 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

Question 62

Sexual Conduct with consent induced by certain threats | 129A(5)(a)

Answer 62

(a) a threat that the person making the threat or some other person will commit an offence that (i) is punishable by imprisonment; but (ii) does not involve the actual or threatened application of force to any person, and (b) will make an accusation or disclosure about misconduct by any person that is likely to seriously damage the reputation

Question 63

Difference between 128 and 129A

Answer 63

Consent to sexual connection induced by certain threats but with no violence - 129A

Question 64

Section 144A - Sexual Conduct with a child outside NZ

Answer 64

If it is an offence in NZ then it is an offence outside of NZ if a NZ citizen or resident of NZ

Question 65

Section 121 Evidence Act 2006

Answer 65

It is not necessary that evidence that the prosecution relies on is corroborated

Question 66

Under section 103(3) witness giving evidence in alternative manner, made on the grounds of...

Answer 66

* Age or maturity of witness * physical, intellectual, psychological, psychiatric impairment * fear of intimidation * trauma suffered * language barrier or cultural background/religion * nature of the proceeding * nature of evidence expected to give * relationship between witness and any party in proceeding * absence/likely absence from NZ

Question 67

Serious Child abuse includes:

Answer 67

Sexual abuse Serious Physical abuse Serious wilful neglect Serious FV where the child is a witness Allegations against CYF caregivers that involve serious child abuse Allegations against CYF and Police employees that involve serious child abuse

Question 68

Determining the seriousness of the abuse

Answer 68

Action - eg - blow or kick to the head, strangulation Injury - eg - death, burn, bone fracture, unconscious, bruises on baby Circumstances -eg - More than one offender, History of abuse, High degree of violence, Offenders History, Vulnerability of the child, Location of incident (kindy)

Question 69

Response Times CYF

Answer 69

Critical or very urgent cases - within 24 hours | Urgent - within 2 full working days

Question 70

CYFs initial 3 process steps

Answer 70

Referral - Police and CYP advise each other - phone/electronic Consultation - discuss what approach to take - confirm CYF case and share information Agreement IJIP - who is involved in the case, what they will do, when they will do it

Question 71

Joint Investigation Plan must include

Answer 71

``` Safety of the child Any joint visits needed Management of initial interview Need for specialist interview Collection of forensic evidence Referral to Medical Practitioner (and authority to do so) ```

Question 72

ASA Timeframes

Answer 72

Acute - within 7 days Non-Acute - 7 or more days after sexual assault - less than 6 months Historic - after 6 months of the sexual assault

Question 73

Purpose of Prelim interview -ASA

Answer 73

What, When, Where it happened Who was the offender To establish: What further investigation actions are necessary Whether an offence has occurred AND Whether the victim wants to make a formal complaint

Question 74

After Prelim Interview - ASA

Answer 74

``` What further investigation necessary including: Public Safety Preserve evidence Tox kit for urination Secure crime scene ID and locate witnesses ID and apprehend the suspect ```

Question 75

Aims and objectives of the medical - ASA

Answer 75

Phyiscal, sexual and mental health | Collect trace evidence

Question 76

After CYF interview police must...

Answer 76

Review the impact of information disclosed Update CYF on any information disclosed and discuss care and protection concerns. IJIP may need to be amended

Question 77

Doctors 2 main priorities

Answer 77

Safety and wellbeing paramount Physical, mental, sexual health and safety. Then forensic trace evidence