Sexual Offences Liabilities Definitions Flashcards Preview

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Flashcards in Sexual Offences Liabilities Definitions Deck (13)
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1

Person

Gender Neutral. Proven by Judicial notice or circumstantial evidence

2

Rape


(Sexual Violation By Rape)

RAPE
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
Sec 128(2), Crimes Act 1961

PENETRATION
Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection
Sec 2(1A), Crimes Act 1961

PROOF OF PENETRATION IS REQUIRED
Proof my be provided by:
- the complainant's evidence
- medical examination, (DNA, injuries)
- accused's admissions

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)
Sec 2, Crimes Act 1961

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.
R v KOROHEKE

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, Crimes Act 1961

CONSENT
"Consent" is a person's conscious and voluntary agreement to 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 1961
- not protesting or offering physical resistance to use force.
- application of force to self or others, threats of force to self or others or fear of force to self or others
- asleep or unconscious
- so affected by drugs/alcohol they cannot consent
- so affected by mental or physical impairment they cannot consent
- mistaken ID
- mistaken as to the nature and quality of the act
(Only include those relevant to the scenario, if any)

REASONABLE GROUNDS
The establishing of reasonable grounds is a three 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 were not consenting did the offender believe the complainant was consenting? ie what was the offender thinking at the time
Objective test - step 3 - Reasonable grounds for belief of 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

3

Has Unlawful Sexual Connection

(Sexual Violation By Unlawful Sexual Connection)

UNLAWFUL SEXUAL CONNECTION - Sec 128(3) CA
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

Sec 2 CA, SEXUAL CONNECTION
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purpose, of
1 - a part of the body of another person; or
2 - an object held or manipulated by another person or
(b) connection between the mouth or tongue of one person and a part of another persons genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)

PENETRATION
Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection
Sec 2(1A), Crimes Act 1961

PROOF OF PENETRATION IS REQUIRED
Proof my be provided by:
- the complainant's evidence
- medical examination, (DNA, injuries)
- accused's admissions

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)
Sec 2, Crimes Act 1961 (only include if relevant)

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.
R v KOROHEKE (only include if relevant)

OBJECTS HELD OR MANIPULATED:
Any object that can be held or manipulated by the other person - e.g bottle or vibrator

CONSENT
"Consent" is a person's conscious and voluntary agreement to 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 1961
- not protesting or offering physical resistance to use force.
- application of force to self or others, threats of force to self or others or fear of force to self or others
- asleep or unconscious
- so affected by drugs/alcohol they cannot consent
- so affected by mental or physical impairment they cannot consent
- mistaken ID
- mistaken as to the nature and quality of the act
(Only include those relevant to the scenario, if any)

REASONABLE GROUNDS
The establishing of reasonable grounds is a three 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 were not consenting did the offender believe the complainant was consenting? ie what was the offender thinking at the time
Objective test - step 3 - Reasonable grounds for belief of 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

4

Assaults another person


(Assault with Intent to Commit Sexual Violation)

ASSAULT
Assault means the act of intentionally applying or attempting to apply force to a person of another directly or indirectly, or threatening by any act or gesture to apply such a 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; and to assault has a corresponding meaning.
Sec 2, CA 1961

5

With intent to commit sexual violation


(Assault with Intent to Commit Sexual Violation)

INTENT
In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly an intention to get a specific result.

SEXUAL VIOLATION
(1) Sexual Violation is the act of a person who
(a) rapes another person; or
(b) has unlawful sexual connection with another person
Sec 128(1), Crimes Act 1961

RAPE
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
Sec 128(2), Crimes Act 1961

OR

UNLAWFUL SEXUAL CONNECTION - Sec 128(3) CA
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

Sec 2 CA, SEXUAL CONNECTION
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purpose, of
1 - a part of the body of another person; or
2 - an object held or manipulated by another person or
(b) connection between the mouth or tongue of one person and a part of another persons genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)

6

Has sexual connection


(Sexual Conduct with dependant family member)

(Sexual Conduct with a child under 12)

(Sexual Conduct with a Young Person under 16)

(Incest)

Sec 2 CA, SEXUAL CONNECTION
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purpose, of
1 - a part of the body of another person; or
2 - an object held or manipulated by another person or
(b) connection between the mouth or tongue of one person and a part of another persons genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)

PENETRATION
Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection
Sec 2(1A), Crimes Act 1961

PROOF OF PENETRATION IS REQUIRED
Proof my be provided by:
- the complainant's evidence
- medical examination, (DNA, injuries)
- accused's admissions

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)
Sec 2, Crimes Act 1961 (only include if relevant)

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.
R v KOROHEKE (only include if relevant)

7

With/on a child

(Sexual Conduct with a child under 12)

CHILD
Child means a person under the age of 12 years old
Section 132(6)(a)

PROVING AGE
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the vicitm's] age.
R V Forrest and Forrest

In practice this generally involves producing the victims birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.

8

Does an Indecent Act


(Sexual Conduct with a child under 12)

(Sexual Conduct with a Young Person under 16)

INDECENT ACT
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 modesty 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
- the child does the act on the offender
- the act is mutual

Doing an indecent act on a child includes indecently assaulting the child
Sec 132(6)(b) CA 61

9

With/on a young person

(Sexual Conduct with a young person under 16)

YOUNG PERSON
Young person means a person under the age of 16 years old
Section 134(6)(a)

PROVING AGE
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the vicitm's] age.
R V Forrest and Forrest

In practice this generally involves producing the victims birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.

10

Indecently Assaults


(indecent Assault)

INDECENT ASSAULT
The definition of indecent assault is an assault accompanied with circumstances of indecency
R v LEESON

INDECENT ACT
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 modesty of [the complainant]
R V Court

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 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; and to assault has a corresponding meaning
Sec 2 CA 61

11

with a dependant family member
under 18 years



(Sexual Conduct with dependant family member)

DEPENDANT FAMILY MEMBER
Section 131A(1) CA 61
Dependant family member defined
For the purpose of section 131 one person is a dependant 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, gaurdian, 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-parenjt; or
(iv) the spouse or de facto partner of a person described in subparagraph (i) or subparagraph (ii) or subparagraph (iii) or

OR

SECTION 131A(1)(b) CA 61
if they are members of the samily family, whanau or other culturally recognized family group, and the other person
(i) is not a person referred to it paragraph (a) but
(ii) has a responsibility for or significant role in, his or her care or upbringing; or

OR

SECTION 131A(1)(c) CA 61
if he or she is living with the other person as a member of the other persons family and the other 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

PROVING AGE
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the vicitm's] age.
R V Forrest and Forrest

In practice this generally involves producing the victims birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.

12

Over the age of 16

(Incest)

PROVING AGE
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the vicitm's] age.
R V Forrest and Forrest

In practice this generally involves producing the victims birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.

13

Knowledge

Knowing means knowing or correctly believing. . . the belief must be a correct one, where the belief is wrong a person cannot know something
Simester and Brookbanks