Sexual Offences CIB007 Flashcards

1
Q

What is section 128B CA 1961?

A

(1) Everyone who commits sexual violation = 20 years.
(2) They must be sentenced to imprisonment unless, having regard to the matters stated in (3), the court thinks that the person should not be sentenced to imprisonment.
(3) The matters are:
(a) Circumstances of the person convicted; and
(b) Circumstances of the offence, including the nature of the conduct constituting it

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2
Q

What is section 128(1)(a) CA 1961?

A

SEXUAL VIOLATION BY RAPE:

Sexual violation is the act of a person who rapes another person.

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3
Q

What is section 128(1)(b) CA 1961?

A

SEXUAL VIOLATION BY UL SEXUAL CONNECTION:

Sexual violation is the act of a person who has unlawful sexual connection with another person.

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4
Q

What is section 128(2) CA 1961?

A

DEFINES RAPE:

(2) 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.

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5
Q

What is section 128(3) CA 1961?

A

DEFINES UL SEXUAL CONNECTION:

(3) 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.

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6
Q

What is section 128(4) CA 1961?

A

One person may be convicted of the sexual violation of another person at a time when they were married to each other.

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7
Q

Define sexual connection and name the section which relates?

A

Section 2 CA 1961 - Interpretation:
Sexual connection means—
(a) connection effected by the introduction into the genitalia or anus of one person 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)

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8
Q

Define ‘genitalia’ and name the case law which relates?

A

Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female, or of indeterminate sex). It literally means the organs of generation.

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.

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9
Q

What is section 127 CA 1961?

A

Section 127 - 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.

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10
Q

What three tests must the Crown prove in relation to unlawful sexual connection?

A
  1. Subjective Test: The complainant did not consent to the sexual act AND
  2. Subjective Test: The offender did not believe the complainant was consenting OR
  3. Objective Test: If he did believe she was consenting, the grounds for such a belief were not reasonable
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11
Q

What was held in R v Cox?

A

Consent must be “full, voluntary, free, and informed.. freely and voluntarily given by a person in a position to form a rational judgement”.

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12
Q

What was held in R v Gutuama?

A

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.

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13
Q

When is consent relevant? (CL)

A

In R v Adams, the material time when consent, and the belief in consent, is to be considered is at the time the act actually took place.

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14
Q

What is section 128A CA 1961? Explain at least 6 out of the 9 subsections.

A

128A - Allowing sexual activity does not amount to consent in some circumstances:
(1) He or she does not protest or offer physical resistance to the activity.
(2) If he or she allows the activity because of—
(a) force applied to him or her or some other person; or
(b) the threat (express or implied) of the application of force to him or her or some other person; or
(c) the fear of the application of force to him or her or some other person.
(3) Asleep or unconscious.
(4) Affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
(5) Affected by an intellectual, mental, or physical condition or impairment
(6) Mistaken about who the other person is.
(7) Mistaken about its nature and quality.
(8) This section does not limit the circumstances in which a person does not consent to sexual activity.
(9) For the purposes of this section,—
allows includes acquiesces in, submits to, participates in, and undertakes sexual activity, in relation to a person, means—
(a) sexual connection with the person; or
(b) the doing on the person of an indecent act that, without the person’s consent, would be an indecent assault of the person.

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15
Q

What was held in R v Koroheke re 128A and force, threat, or fear of force?

A

It is important to distinguish between consent that is freely given and the 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.

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16
Q

Where the validity of a person’s consent is in question due to impairment, what must be established?

A

The impairment was sufficiently severe so as to deprive the complainant of the capacity to give or withhold consent.

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17
Q

List 3 different forms of non-consensual sexual connection.

A
  1. Penetration of a person’s genitalia or anus by a part of another persons body (eg. finger in vagina or penis in anus)
  2. Penetration of a person’s genitalia or anus by an object held or manipulated by another person (eg. vibrator or other hand held items)
  3. Touching of a person’s genitalia or anus by another person’s mouth or tongue (eg.oral sex)
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18
Q

What is section 129 CA 1961?

A

129 - Attempted sexual violation and assault with intent to commit sexual violation:

(1) Every one who attempts to commit sexual violation is liable to imprisonment for a term not exceeding 10 years.
(2) Every one who assaults another person with intent to commit sexual violation of the other person is liable to imprisonment for a term not exceeding 10 years.

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19
Q

What is section 72 CA 1961?

A

72 - Attempts

(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

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20
Q

Name the two types of intention

A
  1. Deliberate Act

2. Intent to produce a result

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21
Q

What was held in R v Harpur in relation to ‘attempts’?

A

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”.

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22
Q

What was held in R v Harpur in relation to ‘sufficient proximity’?

A

The conduct is 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.

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23
Q

Define assault and name its section

A

Section 2: The act of intentionally applying or attempting to apply force to a person directly or indirectly or threatening by any act or gesture to apply such force

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24
Q

Name the two different intentions an offender may assault a victim in relation to ‘attempts’

A
  1. In hope that the complainant will change their mind and consent to the act
  2. Intending to commit rape or sexual connection regardless of whether the complainant changes their mind
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25
Q

List the mens rea element that must be proved at the time the defendant assaulted the victim

A
  1. Intention to have sexual connection with the complainant AND
  2. the complainant did not consent to the sexual connection ANS
  3. the defendant did not believe on reasonable grounds that the complainant was consenting
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26
Q

What is Section 132 CA1969 (including subsections)?

A

132 Sexual conduct with child under 12

(1) Every one who HAS SEXUAL CONNECTION with a child = 14 years.
(2) Every one who ATTEMPTS to have SEXUAL CONNECTION with a child = 10 years.
(3) DOES an INDECENT ACT on a child = 10 years.
(4) It is not a defence if they believed the child was of or over the age of 12 years.
(5) It is not a defence that the child consented.
(6) In this section:
(a) child = under the age of 12 years; and
(b) doing an indecent act on a child includes indecently assaulting the child

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27
Q

What was held in R v Cox in relation to ‘consent of a child’?

A

We do not exclude the possibility that a child 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.

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28
Q

What was held in R v Cox in relation to ‘reasonable belief in consent of child’?

A

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 10 or 11 year old girl has the experience or maturity to understand the nature and significance of the act

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29
Q

What was held in R v Forrest and Forrest?

A

The best evidence possible should be adduced by the prosecution in proof of the victims age

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30
Q

Define indecent act

A

One person does an indecent act on another person whether he/she

(a) does an indecent act WITH or ON the other person
(b) induces/permits the other person to DO an indecent act WITH or ON him/her

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31
Q

What was held in R v Court?

A

Indecency means conduct that right thinking people will consider an affront to the sexual modesty of the complainant

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32
Q

What is Section 134 CA1961 (including subsections)?

A

134 Sexual conduct with young person under 16

(1) HAS SEXUAL CONNECTION with a young person = 10 years.
(2) ATTEMPTS to have SEXUAL CONNECTION with a young person = 10 years.
(3) DOES an INDECENT ACT = 7 years.
(4) No person can be convicted of a charge under this section if he or she was MARRIED to the YP
(5) The victim cannot be charged as a party to the offence if the offender was of or over the age of 16 years when the offence was committed.
(6) In this section:
(a) YP = under the age of 16 years; and
(b) doing an indecent act on a young person includes indecently assaulting the young person.

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33
Q

What is Section 134A (including subsections) CA1961?

A

134A Defence to charge under section 134

(1) 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 B on RG that the YP was of or over the age of 16 years; and
(c) the YP n consented.
(2) Except to the extent provided in subsection (1):
(a) it is not a defence that the YP concerned CONSENTED; and
(b) it is not a defence that the person charged BELIEVED that the YP was of or over the age of 16 years.

34
Q

What is Section 135 of CA1961?

A

Everyone is liable to imprisonment for 7 yrs who indecently assaults another person

35
Q

What was held in R v Leeson?

A

The definition of indecent assault is assault accompanied with circumstances of indecency

36
Q

What must the prosecutor prove in relation to indecent assault? (3)

A
  1. The defendant intentionally assaulted the complainant
  2. The circumstances accompanying the assault were indecent
  3. The defendant did not honestly believe the complainant was consenting
37
Q

In relation to indecent assault, if the issue of consent is raised on the evidence, what must the prosecution prove?

A
  1. The complainant did not consent to the assault

2. The defendant did not honestly believe the complainant was consenting

38
Q

What is S129A CA1961?

A

(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 = 14 years.
(2) Every one who does an INDECENT ACT on another person KNOWING that the other person has been induced to consent by threat = 5 years.
(3) Subsection (1) KNOWS a threat or implied threat made in (5)
(4) For the purposes of subsection (2),—
(a) Subsection (2) KNOWS a threat or implied threat made in (5); and
(b) a person is induced to consent to an indecent act whether—
(i) induced to consent to the DOING of an indecent act WITH or ON him or her; or
(ii) induced to consent to DO an indecent act himself or herself.
(5) The kinds of threat referred to in subsections (3) and (4)(a) are:
(a) someone 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) someone will l make an accusation or disclosure something that will damage the reputation of the person; and
(c) making improper use of a power or authority arising out of—
(i) an occupational or vocational position or
(ii) a commercial relationship

39
Q

What is Section 130 of the CA1961?

A

Incest

(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.

40
Q

Incest, Section 130 CA1961 - both parties must be consenting. True or false.

A

True. If both parties aren’t consenting, then a charge of sexual violation is appropriate.

41
Q

What is Section 131 CA1961?

A

131 Sexual conduct with dependent family member

(1) 7 years = SEXUAL CONNECTION with a dependent family member under the age of 18 years.
(2) 7 years = who ATTEMPTS to have sexual connection with a dependent family member under the age of 18 years.
(3) 3 years = INDECENT ACT on a dependent family member under the age of 18 years.
(4) The dependent family member cannot be charged as a party to the offence.
(5) It is not a defence to a charge under this section that the dependent family member consented.

42
Q

What is Section 131A CA1961?

A

131A Dependent family member defined
(1) For the purposes of section 131, one person is a dependent family member of another person—
(a) 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.
(2) In subsection (1),— aunt, in relation to a person, includes a half-sister of one of the person’s parents
foster parent includes a former foster parent
guardian—
(a) means guardian by virtue of the Guardianship Act 1968 or the Oranga Tamariki Act 1989; and
(b) includes a former guardian step-parent includes a former step-parent, uncle, in relation to a person, includes a half-brother of one of the person’s parents.

43
Q

What is Section 131B CA1961?

A

131B 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:
(ii) travels with the intention of meeting:
(iii) arranges for or persuades the young person to travel with the intention of meeting; and
(b) dw
(1A) Can include a reference to a constable who pretends to be a young person if the offender, when taking any of the actions described in subsection (1), believed that the person was under the age of 16 years.
(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.

44
Q

When is S131B complete?

A

When the parties meet, the defendant travels, or makes arrangements to meet the complainant.

45
Q

What is S138 CA1961?

A

138 Sexual exploitation of person with significant impairment

(1) 10 years who HAS exploitative sexual connection with a person with a significant impairment.
(2) 10 years who ATTEMPTS to have exploitative sexual connection with a person with a significant impairment.
(3) For (1) and (2), a person has exploitative sexual connection with a person with the impaired person if he or she—
(a) 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) 5 years = who exploitatively DOES an INDECENT ACT on a person with a significant impairment.
(5) Same as 3.
(6) Significant impairment = an intellectual, mental, or physical condition that affects a person to such an extent that it significantly impairs the person’s capacity—
(a) to understand the nature of sexual conduct; or
(b) to understand the nature of decisions about sexual conduct; or
(c) to foresee the consequences of decisions about sexual conduct; or
(d) to communicate decisions about sexual conduct.

46
Q

What is Section 143 CA1961?

A

143 Bestiality

(1) 7 years = commits bestiality.
(2) This offence is complete upon penetration.

47
Q

What is Section 144A & 144B CA1961?

A
144A = Sexual conduct with children and young people outside NZ
144B = Consent of Attorney-General required
48
Q

What is Section 44 of the Evidence Act 2006?

A

It covers evidence of sexual experience of complainants in sexual cases.
- No evidence or questions can be put to the complainant about their sexual experience with any other person other than the defendant (unless approved by the judge)

49
Q

What is Section 87 of the Evidence Act 2006?

A

It protects the witness from having to state their home address.

50
Q

What is Section 88 of the Evidence Act 2006?

A

It protects the complainant having questions put to them (or the witness) about their occupation.

51
Q

What is Section 121 of the Evidence Act 2006?

A

In any criminal proceeding, the complainants evidence does not have to be corroborated.

52
Q

What does Section 35 of the Evidence Act 2006 relate to?

A

“Previous consistent statements rule”.

53
Q

What are the 4 advantages of visually recording evidence?

A
  1. greater quality and quantity of information obtained
  2. minimising trauma to the witness by simplifying the process and having their interview played as their evidence in chief
  3. reducing contamination by the interviewer through the process of transposing the interview into a statement
  4. its a good way for the witness to refresh their memory
54
Q

By presenting a Child’s video interview in Court, what are the 4 ways it meets the child’s needs?

A
  1. the interview process is focused on the child and allows them to state clearly and freely what (if anything) has happened
  2. the video can be used for the basis of an investigation, subsequent criminal prosecution, and/or care and protection purposes
  3. it avoids the need to reinterview the child
55
Q

What is Section 195 CA1961?

A

Ill-treatment or neglect of child or vulnerable adult.

56
Q

What is Section 195A CA1961?

A

Failure to protect child or vulnerable adult.

57
Q

Define a ‘victim’. Include the section. List 4 types.

A

Section 4 CA1961.

  1. A person whom an offence is committed against
  2. A person who suffers physical injury, or loss/damage to property (from the offence)
  3. a parent or legal guardian of a child or YP - does not include offender
  4. A member of the immediate family of the victim who died/is incapable as a result of the offence
58
Q

When interacting with a victim of sexual offences, what are 7 ways to provide a safe and secure environment?

A
  1. conduct your dealing in a sensitive matter
  2. accept they are telling the truth
  3. listen to what they have to say
  4. establish if they require medical attention
  5. treat them courteously
  6. explain the process
  7. advise them of local counselling
59
Q

List the 12 key process points in the ASA Policy and Procedure

A
  1. IA on contact
  2. Case referral
  3. Providing specialist support
  4. prelim interview
  5. Information feedback
  6. Medical examination
  7. Formal interview
  8. Investigation and Evidence
  9. Resolution options
  10. Prosecution
  11. Final actions and record keeping
  12. Preventative opportunities and responsibilities
60
Q

In relation to S195A - Failure to protect child or vulnerable adult. Criminal liability will arise if a person has frequent contact with a child (or vulnerable adult) and what else? (2 points).

A
1 knows (mens rea) the victim is at risk of death, GBH, or sexual assault as a result of the acts or omissions of another person; and
2. Fails (actus reus) to take reasonable steps to protect the victim from that risk
61
Q

At what age may a person not be charge for “failure to protect child or vulnerable adult” (195A)?

A

Under the age of 18 at the time of the act or omission.

62
Q

Explain what is meant under ‘liability of extended family’ when taking about the charge of “failure to protect child or vulnerable adult”?

A

A person may be regarded as a member of a household even if they do not live in the same household but are so closely connected right he household it’s reasonable in the circumstances to regard them as a member of the household.

63
Q

Under S128A, what are the three examples a person does not consent to sexual activity if he or she allows the activity?

A

A) force applied to him or her or some other person
B) the threat (express or implied) of force to him or her or some other person
C) the fear of the application of force to him or her or some other person

64
Q

Explain the objective test for indecency.

A

Indecency must be judged in light of the time, place and circumstances. It must be something more than trifling and be sufficient to wast any the sanction of the law.

65
Q

What is the maximum term of imprisonments for indecent assault?

A

7 years.

66
Q

What is the maximum term of imprisonments for “sexual conduct with a DFM” (1) everyone who has sexual connection?

A

7 years

67
Q

How old must you be to be charged with SC with a DFM?

A

18 years old

68
Q

Under S131B, after meeting or communicating with the person under 16, what are the 3 actions outlined under 1(a)?

A

I) internationally meets the YP or

ii) travels with the intention of meeting the YP or
iii) arranges for or persuades the YP to travel with the intention of meeting him or her

69
Q

In relation to S131B (SC with a DFM), when in the offence complete?

A

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”.

70
Q

In relation to S138 (sexual exploitation of person with significant impairment), for the purposes of (1) and (2) a person has exploitative sexual connection with a person with significant impaired if he or she -

A

(a) 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.

71
Q

Under S44 of the evidence act 2006, (evidence of sexual experience of complainants in sexual cases), what is held in subsection (1)?

A

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.

72
Q

Under S44 of the evidence act 2006, (evidence of sexual experience of complainants in sexual cases), what is held in subsection (3)?

A

In an application for permission under subsection (1), the judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to the facts in issue in the proceeding, or the issues of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.

73
Q

In relation to section 121 of the evidence act 2006 (corroboration), what will previous consistent statements be?

A

Previous consistent statements will really only be admissible is rebuttal evidence.

74
Q

Who is responsible for transcribing DVDs?

A

The officer in charge.

75
Q

What must you remind the victim not to do prior to a medical examination?

A

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

76
Q

There are three areas to consider in determining whether physical abuse is serious and therefore meets a threshold for a referral as a CPP case, what are those three areas?

A

The action of the abuse
The injury inflicted
The circumstances (factors of the case).

77
Q

What are the three complaint types when talking about ‘adult sexual assault’?

A

Acute (within 7 days), Non-acute (more than 7 days but less than 6 months), and Historic (after 6 months)

78
Q

Doing a prelim interview is necessary for investigators to gain a better understanding of what has occurred to determine: (3 points)

A
  1. What further investigative actions are necessary
  2. Weather in offence may have occurred, and
  3. Whether the victim wishes to make a formal complaint
79
Q

Prior to a medical assessment what must be explained to the victim (this is not the “do nots”)?

A

That the examination will be conducted by a medical forensic practitioner specially trained and examining individuals who have been sexually assaulted.

That the examination has potential health benefits that can Police obtain evidence to apprehend the offender.

The expected duration of the examination (“a couple of hours”) and, if appropriate, possible outcomes of the examination.

80
Q

What are the child youth and family time frame categories?

A

Critical (an immediate risk of serious harm and the need for immediate protection may be necessary)

Very Urgent (at risk of harm is not in any immediate danger)

Urgent (at risk of harm but protected in the short-term)

81
Q

In relation to child protection policy and procedure; when should a child be removed?

A

When it is not safe to leave them there or you believe on reasonable grounds that if left they will suffer, or are likely to suffer, ill-treatment, neglect, depravation, abuse or harm, and there is no other practical means of ensuring their safety.