What must the crown prove re consent? Case law..
R v Gutuama. Under the objective test the crown must prove that no reasonable person in the accuseds shoes could have thought that the complainant was consenting.
What is R v Cox?
Consent must be full voluntary free and informed, freely and voluntarily given by a person in a position to form a rational judgement.
What is the difference between rape and unlawful sexual connection?
“Rape is the specific form of sexual violation that involves the non consensual penetration of the complainants genitalia by the offenders penis”
“Unlawful sexual connection has a wider meaning, and includes any form of non consensual penetration or oral connection with a persons genitalia or anus”.
What must the crown prove in relation to section 129(1) - attempted sexual violation?
Beyond reasonable doubt that the defendant:
- Intended to have sexual connection with the complainant AND
- The complainant did not consent to the intended sexual connection AND
- Did not believe on reasonable grounds that the complainant was consenting.
Must also prove that the defendant acted as he did for the purpose of achieving his intended aim.
What is R v Harpur
(Man describing explicit acts he wanted to perform on ladies 4y/o niece .. Arranged to meet for purpose)
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.
Describe the case law that covers the claims of a defendant that a child of 12 years or younger was consenting - exceptional and rare circumstances..
R v Cox
Although we do not exclude the possibility that a child of 10 or 11 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.
No reasonable adult would have grounds for believing that a 10 or 11 year old has the experience or maturity to understand the nature of the act.
- Consent is no defence to a charge of sexual conduct with a child under 12.
How do the prosecution prove a child’s age?
Using the best evidence available, in practise generally involves the complainants birth cert. in conjunction with independent evidence that IDs the complainant as the person named in the cert.
What is R v Forrest and Forrest?
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.
What is the definition of an indecent act?
An act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values
Explain section 134A in relation to defence to the charge of 134 Sexual Conduct with a Young Person under 16
It is a defence to a charge of 134 if the defendant proves that:
a) before the time of the act concerned, he or she had taken reasonable steps to find out whether the young person concerned was of or over the age of 16 years, AND
b) at the time of the act concerned, he or I she believed on reasonable grounds that the young person was of or over the age of 16 years, AND
c) the young person consented.
Explain R v Leeson
The definition of “indecent assault” is an assault accompanied with circumstances of indecency.
What must the prosecution prove in cases of indecent assault s 135?
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.
What kinds of threats are referred to in relation to s129A CA61, sexual conduct with consent induced by certain threats?
5(a) a threat that the person making the threat or some other person 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
What is the difference between sections 128 (sexual violation by rape) and section 129A (sexual conduct with consent induced by certain threats)?
The offence includes inducing someone to commit sexual connection in response to an implied or explicit threat that does not involve force, the section uses the same definitions of consent and sexual connection as s128
What must the crown prove in relation to incest s130?
That each pretty charged knew of their relationship before or at the time of the sexual connection.
What is the definition of a ‘family member’ in relation to s131 sexual conduct with dependant family member?
(A) if the person has power or authority over him/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 defacto partner of a person described in the above.
(b) if they are members of the same family, whanau or other culturally recognised family group and is responsible for or has a significant role in his or her care or upbringing; or
(c) 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 (a) but is responsible for or has a significant role in his or her care or upbringing.
Explain the ingredients of the offence of 131B CA61, meeting young person following sexual grooming..
(1) every person is liable for 7years if -
(a) having met or communicated with a person under the age of 16 yrs 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 persuades the young person to travel with the intention of meeting him or her
(b) with the intent to commit an offence against this part or other of section 98AA(1)
When does someone commit the offence of s138 - sexual exploitation of person with significant impairment..?
(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.
What is the act, section an penalty for indecency with an animal?
Section 144 crimes act 1961, 3 years imprisonment
Explain section 66 of the evidence act in relation to evidence of sexual experience of complainants? No evidence can be given and no question can be put to a witness ….
- relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the judge
- That relates directly or indirectly to the reputation of the complainant in sexual matters
Explain section 87 of the evidence act 2006 in relation to privacy as to a witnesses precise address
- In any proceeding the precise particulars of a witnesses address (ie street and number) may not without 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, officer of the court or any other person
2. The Judge must not grant permission under subsection (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. An application for permission under subsection (1) may be made before or after the commencement of any hearing, and is, where practicable, to be made and dealt with in chambers. Nothing in subsection (1) applies in a criminal proceeding if it is necessary to disclose the particulars in the charge in order to ensure that the defendant is fully and fairly informed of the charge.
What does section 88 of the evidence act protect in relation to a witness?
a complainant from having questions put to them or to a witness about the complainant’s occupation, or having evidence given, or statements/remarks made about the complainant’s occupation.
Does a victims account in a sexual complaint need to be corroborated? What section of the evidence act supports answer?
No it doesn’t, Section 121 (Corroboration) of the Evidence Act 2006 provides that, in any criminal proceeding, the complainant’s evidence does not have to be corroborated.
What is the previous consistent statement rule?
Evidence of recent complaint no longer apply. There are exceptions, as they may be used to respond to a challenge of a witnesses veracity or accuracy based on a previous inconsistent statement of the witness or a claim the witness recently invented the evidence.
What are the 10 basis for which evidence may be given in an alternative way?
(a) age or maturity
(b) physical, phsycological, or psyciatric impairment
(c) trauma suffered
(d) witness fear of intimidation
(e) linguistic or cultural background/beliefs of witness
(f) nature of proceeding
(g) nature of the evidence expected to give
(h) the relationship of the witness to any party of the proceeding
(i) the absence or likely absence ofnthe witness from nz
(j) any other ground likely to promote the purpose of the act
What are the three ways to give alternative evidence?
- While in the courtroom but unable to see the defendant or some other specified person
- From an appropriate place outside the courtroom either in New Zealand or elsewhere
- By a video record made before the hearing of the proceeding.
What is regulation 28 of the evidence regulations act?
Police must ensure a typed transcript of a video record to be used in proceedings is given to the defendant/defendants lawyer asap after not guilty entered.
What constitutes serious child abuse? 6 things..
- Sexual abuse
- Serious physical abuse
- Serious wilful neglect
- Serious family violence where the child is a witness
- All allegations against cyf approved caregivers that involve serious child abuse
- All allegations against employees of cyf and nz police that involve serious child abuse
Describe legislation for s195A failure to protect child or vulnerable adult
Everyone is liable to imprisonment for a term not exceeding 10 years who being a person described in subsection (2), has frequent contact with a child or vulnerable adult and -
a) knows the victim is at risk of death gbh or sexual assault as the result of -
(i) an unlawful act by another person
(ii) an omission by another person to discharge or perform a legal duty if, in the circumstances that omission is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies; and
(b) fails to take reasonable steps to protect the victim from that risk.
(2) the persons are -
(a) a member of the same household as the victim; or
(b) a person who is a staff member of any hospital, Institution , or residence where the victim resides.
What are the cpp cyf time frames?
- Immediately in critical or very urgent cases ie asap and within 24 hours
- within 2 full working days for urgent cases
How do you determine the seriousness of physical abuse on a child?
- the Action of the abuse
- the Injury inflicted
- the Circumstances (factors of the case)
What is an IJIP and what does it contain?
Initial joint investigation plan, contains infomation of a joint plan with cyfs in relation to an identified cad of serious child abuse -who is involved
- what they will do
- when they will do it
What are the 3 adult sexual assault categories and timeframes
Acute = within 7days of the sexual complaint Non-acute = at seven or more days after the sexual assault , but before 6 months Historic = after six months of the sexual assault.
What is the purpose of a prelim interview with a sexual assault victim?
- what further investigative actions are required?
- whether an offence may have occurred
- whether the victim wishes to make a formal complaint
What actions do you take after a prelim interview?
Re-assess the investigation and consider:
- public safety
- preservation of evidence
- securing and containing the crime scene
- identifying and locating evidence
- identification and or locating and apprehending the suspect
What is the aim and objective of a medical?
Victims well being is paramount primary objective is victims physical, sexual and mental well being, secondary is the opportunity to collect trace evidence.
What must you take to a medical?
A change of clothin for the victim
A MEK kit and toxicology kit
What is the caselaw in relation to reluctant consent?
A true consent may be given reluctantly or hesitantly and might be regretted afterwards, but if consent is given even in such a manner -provided it is without fear of the application of force or the result of actual or threatened force then the act of sexual connection would not be rape.
What is the primary difference between application of force in relation to sections 128 and 129?
128 is an offence that consent to an act of sexual connection is gained by threat of application of force to that or any person.
129 is an offence to have sexual connection not in relation to application of force to that or another person but other threats of disclosures true or false I relation to business or commercial matters
What 3 things must be proven in relation to attempted sexual connection?
- intended to have sexual connection with the complainant
- the complainant did not consent to the intended sexual connection
- the defendant did not believe on RG that the complainant was
What three things must the crown prove in relation to consent?
The complainant did not consent to the sexual act (subjective test) AND
The offender did not believe the complainant was consenting (a subjective test)OR
If he did believe she was consenting the grounds for such a belief wee not reasonable.
What is s131B(1)(a) in relation to meeting young person following sexual grooming?
1) Every person is liable to imprisonment for a term not exceeding 7 years if,— (a) having met or communicated with a person under the age of 16 years (the young person) on an earlier occasion, he or she takes one of the following actions: (i) (ii) (iii) (b) intentionally meets the young person: travels with the intention of meeting the young person: arranges for or persuades the young person to travel with the intention of meeting him or her;
What is r v leeson
The definition of indecent assault is an assault accompanied with circumstances of indecency
What is the defence to a charge under section 134 sexual conduct with young person
(1) (2) It is a defence to a charge under section 134 if the person charged proves that,— (a) before the time of the act concerned, he or she had taken reasonable steps to find out whether the young person concerned was of or over the age of 16 years; and (b) (c) at the time of the act concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years; and the young person consented.
What kinds of Threats are referred to in subsections 3 and 4(a) of section129A sexual conduct induced by certain threats?
(a) a threat threat the person making the threat or so e other person will commit an offewnce that -
(i) is punishable by imprisonment
(ii) does not involve the actual or threatened application of force to any person; AND
(b) a threat that the person making the threat or some other person will make an accusation or disclosure (whether true or false) about misconduct by any person (whether living or dead) that is likely to damage seriously the reputation of the person against or about whom the acusation or disclosure is made; AND
(c) 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 -
(i) an occupantional or vocational position held by the person making the threat; or
(ii) a commercial relationship existing between the person making the threat and the person consenting.
For a charge under s131 sex conduct with dependant family member, what age is a victim
Under 18 years.
What are the ingredients of indecent assault?
Indecently, assaults, another person
In relation to sexual expoitation of persons with significant impairment, what is sub sect 3, when does someone have exploitative sexual connection??
(a) has sexual connection with the impaired person knowing the impaired person is a person with a significant impairment; and
(b) has obtained the impaired persons aquiescence in, submission to, participation in or undertaking of the connection by taking advantage of the impairment
How do we provide a safe and secure environment for victims?
CALMTEA.. Conduct dealings in sensitive manner, Acceot they are telling the truth until there is evidence to the contrary, Listen to what they tell you, Medical, establish if they need medical attention, Treat the courteously, Explain the process, Advise them of counsilling services available.
What grounds must exist to uplift or remove a child? And 3 options to do this
If it is critically necessary to remove that child to prevent injury or death. S42cypfa98, place of safety warrant, warrant to remove.
Explain s 128B being sentenced to prison for sexual violation
They must be sentenced to a term of imprisonment unless having regard to the matters stated in subsection (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
(b) the particular circumstances of the offence inculdi g the nature of the conduct constituting it.
What grounds of fear must exist to negate consent in relation to sexual violation?
Although the Act does not specify the degree of force necessary, force that is intended or sufficient to cause bodily harm would normally negate a claim that consent had been given. A lesser degree of force would be accepted if it caused the victim to submit or acquiesce to the act
What is the case law of r v koroheke in relation to fear or threat of force?
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 6 parts to s132 sexual conduct with child under 12?
(1) (2) (3) (4) (5) (6) Every one who has sexual connection with a child is liable to imprisonment for a term not exceeding 14 years. Every one who attempts to have sexual connection with a child is liable to imprisonment for a term not exceeding 10 years. Every one who does an indecent act on a child is liable to imprisonment for a term not exceeding 10 years. 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. It is not a defence to a charge under this section that the child consented. In this section,— (a) child means a person under the age of 12 years; and (b) doing an indecent act on a child includes indecently assaulting the child.
What is the legislation in regards to incest s130?
(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) (2) the person charged knows of the relationship. Every one of or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 10 years.
Under section 131A who is a dependant family member?
(1) (2) For the purposes of section 131, one person is a dependent family member of another person— (a) (b) (c) 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) (iii) (iv) a parent, step-parent, or foster parent of a person described in subparagraph (i); or a child of his or her parent or step-parent; or the spouse or de facto partner of a person described in subparagraph (i) or subparagraph (ii) or subparagraph (iii); or if they are members of the same family, whanau, or other culturally recognised family group, and the other person— (i) (ii) is not a person referred to in paragraph (a); but has a responsibility for, or significant role in, his or her care or upbringing; or 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) (ii) power or authority over him or her; and a responsibility for, or significant role in, his or her care or upbringing.
Can a woman be charged under s134? Explain
Yes, it is a gender neutral offence and can be committed by a male or female, the fact that the offender is a ‘person’ is generally accepted
When is the offence of ‘grooming’ complete?
The offence is complete when the parties meet, or the defendant travels or makes arrangements to meet the complainant with the relevant intent. To be intentional the meeting need only be “purposely arranged”. This section is framed in gender-neutral terms.