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Flashcards in Sexual Offences Deck (77)
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31

R v Harpur
- attempt proximate

“[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.”

32

Assault definition

Sec 2, CA61
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

33

Sexual Conduct with a child
(3 x acts)

Sec 132, CA61
(1) Every one who has sexual connection with a child is liable to imprisonment for a term not exceeding 14 years.
(2) Every one who attempts to have sexual connection with a child is liable to imprisonment for a term not exceeding 10 years.
(3) Every one who does an indecent act on a child is liable to imprisonment for a term not exceeding 10 years.

34

Sec 132(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.

35

Sec 132(5)

It is not a defence to a charge under this section that the child consented.

36

Sec 132(6)

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.

37

Cox v R
- child consent

“Although we do not exclude the possibility that a child of ten or eleven may consent to sex, the circumstances that would justify that conclusion would be exceptional if not rare. A ten or eleven year old child may know what sexual intercourse is. She may indicate her agreement … but save in such exceptional and rare circumstances, she will not, simply because of her age and stage of sexual development, understand the significance of the act. In that sense, therefore, any consent she may purport to give will not be a legal consent because it will not be either rational or informed.”

38

Proof of 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.

39

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.”

40

Indecent act
- CA61 definition

Sec 2, 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.

41

Indecent act
- general meaning

An ‘indecent act’ is generally accepted to be an act accompanied by circumstances of indecency.

42

R v Court

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

43

Sexual Conduct with a YP
- 3 x acts

Sec 134, CA61
(1) Every one who has sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.
(2) Every one who attempts to have sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.
(3) Every one who does an indecent act on a young person is liable to imprisonment for a term not exceeding 7 years.

44

Sec 134(4) CA61

No person can be convicted of a charge under this section if he or she was married to the young person concerned at the time of the sexual connection or indecent act concerned.

45

Sec 134(5) CA61

The young person in respect of whom an offence against this section was committed cannot be charged as a party to the offence if the person who committed the offence was of or over the age of 16 years when the offence was committed.

46

Sec 134(6) CA61

In this section,—
(a) young person means a person under the age of 16 years; and
(b) doing an indecent act on a young person includes indecently assaulting the young person.

47

Defence to charge under Sec 134 CA61

Sec 134A, CA61
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) 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
(c) the young person consented.

48

Indecent Assault

Sec 135, CA61
Every one is liable to imprisonment for a term not exceeding 7 years who indecently assaults another person.

49

R v Leeson

“The definition of ’indecent assault’ … is an assault accompanied with circumstances of indecency …”

50

R v Court
- indecent assault

On a charge of indecent assault the prosecution must not only prove that the accused intentionally assaulted the victim, but that in doing so he intended to commit an indecent assault, i.e. an assault which right-minded persons would think was indecent.

51

Sexual conduct by coercion

Sec 129A, CA61
(1) Every one who has sexual connection with another person knowing that the other person has been induced to consent to the connection by threat is liable to imprisonment for a term not exceeding 14 years.
(2) Every one who does an indecent act on another person knowing that the other person has been induced to consent to the act by threat is liable to imprisonment for a term not exceeding 5 years.

52

Incest

Sec 130, CA61
(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.
(2) Every one of or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 10 years.

53

Sexual conduct with dependant family member
- x 3 acts

(1) Every one is liable to imprisonment for a term not exceeding 7 years who has sexual connection with a dependent family member under the age of 18 years.
(2) Every one is liable to imprisonment for a term not exceeding 7 years who attempts to have sexual connection with a dependent family member under the age of 18 years.
(3) Every one is liable to imprisonment for a term not exceeding 3 years who does an indecent act on a dependent family member under the age of 18 years.

54

Can a dependant family member be charged with the offence?

No

55

Is it a defence to a charge under Sec 131, that the other person consented?

Sec 131(5) It is not a defence to a charge under this section that the dependent family member consented.

56

Dependant Family Member defined

Sec 131A, CA61
(1) For the purposes of section 131, one person is a dependent family member of another person—
(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 facto partner of a person described in subparagraph (i) or subparagraph (ii) or subparagraph (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 a 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 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.

57

Meeting young person following grooming

Sec 131B, CA61
Meeting young person … following sexual grooming, etc
(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) 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; and
(b) at the time of taking the action, he or she intends—
(i) to take in respect of the young person an action that, if taken in New Zealand, would be an offence against this Part, or against any of paragraphs (a)(i), (d)(i), (e)(i), (f)(i), of section 98AA(1); or
(ii) that the young person should do on him or her an act the doing of which would, if he or she permitted it to be done in New Zealand, be an offence against this Part on his or her part.

58

Sec 131B, what else is included in the meaning of "young person"?

Sec 131B(1A):
A constable who pretends to be a young person under the age of 16 years (the fictitious young person) if the offender, when taking any of the actions described in subsection (1), believed that the fictitious young person was a young person under the age of 16 years.

59

A defence to a charge under sec 131B CA61 (grooming)

Sec 131B, CA61:
(2) It is a defence to a charge under subsection (1) if the person charged proves that,—
(a) before the time he or she took the action concerned, he or she had taken reasonable steps to find out whether the young person was of or over the age of 16 years: and
(b) at the time he or she took the action concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years.

60

Sexual exploitation of significantly impaired person
- 3 x acts

Sec 138, CA61
Sexual exploitation of person with significant impairment
(1) Every one is liable to imprisonment for a term not exceeding 10 years who has exploitative sexual connection with a person with a significant impairment.
(2) Every one is liable to imprisonment for a term not exceeding 10 years who attempts to have exploitative sexual connection with a person with a significant impairment.
(3) For the purposes of subsections (1) and (2), a person has exploitative sexual connection with a person with a significant impairment (the “impaired person”) 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 person's acquiescence in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment.
(4) Every one is liable to imprisonment for a term not exceeding 5 years who exploitatively does an indecent act on a person with a significant impairment.
(5) For the purposes of subsection (4), a person exploitatively does an indecent act on a person with a significant impairment (the “impaired person”) if he or she—
(a) does an indecent act on the impaired person knowing that the impaired person is a person with a significant impairment; and
(b) has obtained the impaired person's acquiescence in, submission to, participation in, or undertaking of the doing of the act by taking advantage of the impairment.