Crimes Amendment Act 2005

1: Title
1: This Act is the Crimes Amendment Act 2005.
2: In this Act, the Crimes Act 1961 the principal Act
2: Commencement
1: Sections 6 8
2: So much of Schedule 1 Extradition Act 1999 Mutual Assistance in Criminal Matters Act 1992
3: The rest of this Act comes into force on the 30th day after the date on which it receives the Royal assent. Section 2(1) brought into force 14 June 2006 Crimes Amendment Act Commencement Order 2006 Section 2(2) brought into force 1 June 2017 clause 2 Crimes Amendment Act 2005 Commencement Order 2017
1: Amendments to principal Act
3: Interpretation
1: Section 2(1) for a material benefit
a: after having obtained a material benefit for doing the thing; or
b: intending to obtain a material benefit for doing the thing genitalia penis sexual connection
a: connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, 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)
2: Section 2
1A: For the purposes of paragraph (a) subsection (1) sexual connection
1B: 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.
3: Section 98B for a material benefit
4: Extraterritorial jurisdiction in respect of certain offences with transnational aspects
1: Section 7A(1)
a: by inserting, before the expression section 98A section 98AA
b: by omitting the expression section 257A section 243
2: Section 7A
2A: Even if some or all of the acts alleged to constitute the offence occurred wholly outside New Zealand, proceedings may be brought for an offence against section 131B
a: if the person to be charged—
i: is a New Zealand citizen; or
ii: is ordinarily resident in New Zealand; or
iii: has been found in New Zealand and has not been extradited; or
b: if any of the acts is alleged to have occurred—
i: on board a ship registered or required to be registered under the Ship Registration Act 1992
ii: on board a ship used as a ship of the New Zealand Defence Force; or
iii: on board a New Zealand aircraft; or
iv: on board an aircraft that is leased to a lessee whose principal place of business is in New Zealand, or who is a New Zealand citizen or a person ordinarily resident in New Zealand; or
c: if a person in respect of whom the offence is alleged to have been committed—
i: is a New Zealand citizen; or
ii: is ordinarily resident in New Zealand.
5: Attorney-General's consent when jurisdiction claimed under section 7A
Section 7B
a: by inserting in subsection (1) (2) section 98A section 98AA
b: by omitting from subsection (1) (2) section 257A section 243
6: New section 98AA inserted
The principal Act is amended by inserting, after section 98
98AA: Dealing in people under 18 for sexual exploitation, removal of body parts, or engagement in forced labour
1: Every one is liable to imprisonment for a term not exceeding 14 years who—
a: sells, buys, transfers, barters, rents, hires, or in any other way enters into a dealing involving a person under the age of 18 years for the purpose of—
i: the sexual exploitation of the person; or
ii: the removal of body parts from the person; or
iii: the engagement of the person in forced labour; or
b: engages a person under the age of 18 years in forced labour; or
c: permits a person under the age of 18 years to be engaged in forced labour; or
d: detains, confines, imprisons, or carries away a person under the age of 18 years for the purpose of—
i: the sexual exploitation of the person; or
ii: the removal of body parts from the person; or
iii: the engagement of the person in forced labour; or
e: removes, receives, transports, imports, or brings into any place a person under the age of 18 years for the purpose of—
i: the sexual exploitation of the person; or
ii: the removal of body parts from the person for a material benefit; or
iii: the engagement of the person in forced labour; or
f: induces a person under the age of 18 years to sell, rent, or give himself or herself for the purpose of—
i: the sexual exploitation of the person; or
ii: the removal of body parts from the person for a material benefit; or
iii: the engagement of the person in forced labour; or
g: induces a person to sell, rent, or give another person (being a person who is under the age of 18 years and who is dependent on him or her or in his or her charge) for the purpose of—
i: the sexual exploitation of the other person; or
ii: the removal of body parts from the other person; or
iii: the engagement of the other person in forced labour; or
h: builds, fits out, sells, buys, transfers, rents, hires, uses, provides with personnel, navigates, or serves on board a ship, aircraft, or other vehicle for the purpose of doing an act stated in any of paragraphs (a) to (g)
i: agrees or offers to do an act stated in any of paragraphs (a) to (h)
2: It is a defence to a charge under this section if the person charged proves that he or she believed on reasonable grounds that the person under the age of 18 years concerned was of or over the age of 18 years.
3: For the purposes of subsection (1) sexual exploitation
a: the taking by any means, or transmission by any means, of still or moving images of the person engaged in explicit sexual activities (whether real or simulated):
b: the taking by any means or transmission by any means, for a material benefit, of still or moving images of the person's genitalia, anus, or breasts (not being an act described in subsection (4) or subsection (5)
c: the person's participation in a performance or display (not being an act described in subsection (4)
i: is undertaken for a material benefit; and
ii: involves the exposure of the person's genitalia, anus, or breasts:
d: the person's undertaking of an activity (for example, employment in a restaurant) that—
i: is undertaken for a material benefit; and
ii: involves the exposure of the person's genitalia, anus, or breasts.
4: For the purposes of paragraphs (b) and (c) of subsection (3) sexual exploitation
5: For the purposes of subsection (3)﻿(b) sexual exploitation
6: For the purposes of subsection (3)﻿(b) sexual exploitation
a: to provide medical or health education; or
b: to provide information relating to medical or health matters; or
c: to advertise a product, instrument, or service intended to be used for medical or health purposes.
7: The person under the age of 18 years in respect of whom an offence against this section was committed cannot be charged as a party to the offence.
8: This section does not limit or affect the generality of section 98
7: New sections 127 to 138 substituted
The principal Act is amended by repealing sections 127 to 142
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 sexual activity
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)
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) 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)
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)
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
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)
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)
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)
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)
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 foster parent guardian
a: means guardian by virtue of the Guardianship Act 1968 Children, Young Persons, and Their Families Act 1989
b: includes a former guardian step-parent uncle
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
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)
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)
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
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
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
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
b: it is not a defence to a charge under section 134
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) impaired person
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) impaired person
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.
8: New section 144A substituted
The principal Act is amended by repealing section 144A
144A: Sexual conduct with children and young people outside New Zealand
1: Every one commits an offence who, being a New Zealand citizen or ordinarily resident in New Zealand,—
a: does outside New Zealand, with or on a child under the age of 12 years, an act to which subsection (2)
b: does outside New Zealand, with or on a person under the age of 16 years, an act to which subsection (3)
c: does outside New Zealand, with or on a person under the age of 18 years, an act to which subsection (4)
2: This subsection applies to an act that, if done in New Zealand, would be an offence against—
a: section 132(1)
b: section 132(2)
c: section 132(3)
3: This subsection applies to an act that, if done in New Zealand, would be an offence against—
a: section 134(1) of this Act
b: section 134(2) of this Act
c: section 134(3) of this Act
4: This subsection applies to an act that, if done in New Zealand, would be an offence against section 23(1) of the Prostitution Reform Act 2003
5: A person who commits an offence against this section in respect of a provision specified in any of subsections (2) to (4)
6: Every limiting provision that applied to a provision specified in any of subsections (2) to (4)
a: the commencement of proceedings for the offence; and
b: a charge under this section in respect of the provision specified.
7: In this section, limiting provision subsections (2) to (4) Prostitution Reform Act 2003
a: circumstances that constitute a defence to a charge under the provision specified; or
b: circumstances that do not constitute a defence to a charge under the provision specified; or
c: circumstances in which the person on or with whom an offence against the provision specified is committed may not be charged with an offence against that provision.
9: New sections 208 to 210A substituted
The principal Act is amended by repealing sections 208 to 210
208: Abduction for purposes of marriage or sexual connection
Every one is liable to imprisonment for a term not exceeding 14 years who unlawfully takes away or detains a person without his or her consent or with his or her consent obtained by fraud or duress,—
a: with intent to marry him or her; or
b: with intent to have sexual connection with him or her; or
c: with intent to cause him or her to be married to or to have sexual connection with some other person. 1908 No 32, s 226
209: Kidnapping
Every one is liable to imprisonment for a term not exceeding 14 years who unlawfully takes away or detains a person without his or her consent or with his or her consent obtained by fraud or duress,—
a: with intent to hold him or her for ransom or to service; or
b: with intent to cause him or her to be confined or imprisoned; or
c: with intent to cause him or her to be sent or taken out of New Zealand. Criminal Code (1954), s 233
209A: Young person under 16 cannot consent to being taken away or detained
For the purposes of sections 208 and 209
210: Abduction of young person under 16
1: Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to deprive a parent or guardian or other person having the lawful care or charge of a young person of the possession of the young person, unlawfully takes or entices away or detains the young person.
2: Every one is liable to imprisonment for a term not exceeding 7 years who receives a young person, knowing that he or she has been unlawfully taken or enticed away or detained with intent to deprive a parent or guardian or other person having the lawful care or charge of him or her of the possession of him or her.
3: For the purposes of subsections (1) and (2)
a: it is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion; and
b: it is immaterial whether the offender believes the young person to be of or over the age of 16.
4: In this section young person 1908 No 32, ss 229, 230 Schedule s 3
210A: People claiming in good faith right to possession of young person under 16
A person who claims in good faith a right to the possession of a young person under the age of 16 years cannot be convicted of an offence against section 209 or section 210
2: Amendments, repeals, and transitional matters
10: Consequential amendments
The enactments specified in Schedule 1 OIC LI 2017/68 2017-06-01 Extradition Act 1999 Mutual Assistance in Criminal Matters Act 1992 LI 2017/68 made 18 April 2017
11: Consequential repeals
The enactments specified in Schedule 2
12: Acts done before commencement of amending provisions
1: Every provision of the principal Act amended or repealed by a section of this Act applies to an act or omission occurring before the commencement of the section as if the section had not been enacted.
2: Every enactment amended or repealed by section 10 11
3: Subsections (1) and (2) are subject to section 13 , the District Courts Amendment Act (No 2) 2008 Summary Proceedings Amendment Act (No 2) 2008 Section 12(3) amended 26 June 2008 section 18(2) Crimes Amendment Act (No 2) 2008
13: Availability of new defences
To the extent (if any) that, with or without modification, a provision of the principal Act substituted by a section of this Act replaces or corresponds to a provision of the principal Act repealed by that section, there are available to a person charged after the commencement of that section with an offence against the repealed provision, so far as they are applicable,—
a: all defences available to a person charged with an offence against the repealed provision; and
b: with any necessary modifications, all defences available to a person charged with an offence against the substituted provision.