Crimes Amendment Act 2005

7 New sections 127 to 138 substituted

• The principal Act is amended by repealing sections 127 to 142, and substituting the following sections:

  “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.

  “128 Sexual violation defined

  • “(1) Sexual violation is the act of a person who—

    • “(a) rapes another person; or

    • “(b) has unlawful sexual connection with another person.

    “(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.

    “(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.

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

  “128A Allowing sexual activity does not amount to consent in some circumstances

  • “(1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.

    “(2) A person does not consent to sexual activity 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) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.

    “(4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.

    “(5) A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.

    “(6) One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.

    “(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is 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.

  “128B Sexual violation

  • “(1) Every one who commits sexual violation is liable to imprisonment for a term not exceeding 20 years.

    “(2) A person convicted of sexual violation must be sentenced to 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; and

    • “(b) the particular circumstances of the offence, including the nature of the conduct constituting it.

  “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.

  “129A Sexual conduct with consent induced by certain threats

  • “(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.

    “(3) For the purposes of subsection (1), a person who has sexual connection with another person knows that the other person has been induced to consent to the sexual connection by threat if (and only if) he or she knows that the other person has been induced to consent to the sexual connection by an express or implied threat of a kind described in subsection (5).

    “(4) For the purposes of subsection (2),—

    • “(a) a person who does an indecent act on another person knows that the other person has been induced to consent to the act by threat if (and only if) he or she knows that the other person has been induced to consent to the act by an express or implied threat of a kind described in subsection (5); and

    • “(b) a person is induced to consent to an indecent act whether—

      • “(i) he or she is induced to consent to the doing of an indecent act with or on him or her; or

      • “(ii) he or she is 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) 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) 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 accusation 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 occupational 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.

  “130 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.

  “131 Sexual conduct with dependent family member

  • “(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.

    “(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.

  “131A Dependent family member defined

  • “(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.

    “(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 Children, Young Persons, and Their Families 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.

  “131B Meeting young person under 16 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.

    “(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.

  “132 Sexual conduct with child under 12

  • “(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.

    “(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.

    “(5) It is not a defence to a charge under this section that the child consented.

    “(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.

  “134 Sexual conduct with young person under 16

  • “(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.

    “(4) 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.

    “(5) 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.

    “(6) 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.

  “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 believed on reasonable grounds that the young person was of or over the age of 16 years; and

    • “(c) the young person consented.

    “(2) Except to the extent provided in subsection (1),—

    • “(a) it is not a defence to a charge under section 134 that the young person concerned consented; and

    • “(b) it is not a defence to a charge under section 134 that the person charged believed that the young person concerned was of or over the age of 16 years.

  “135 Indecent assault

  • Every one is liable to imprisonment for a term not exceeding 7 years who indecently assaults another person.

  “138 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.

    “(6) For the purposes of this section, a significant impairment is an intellectual, mental, or physical condition or impairment (or a combination of 2 or more intellectual, mental, or physical conditions or impairments) 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.”