Crimes (Exploitative Sexual Conduct with Person in Detention) Amendment Bill

Crimes (Exploitative Sexual Conduct with Person in Detention) Amendment Bill

Member's Bill

Explanatory Note

This bill amends the Crimes Act 1961 to create an offence of exploitative sexual connection with people in detention. It would prohibit sexual connection, and other indecent acts between Police Officers, Corrections Officers and others with control over detainees, with those under arrest, imprisoned, or otherwise detained. Given the power imbalance between people arrested or detained and those who are detaining them, consent is not a defence. While this conduct is already recognised as serious misconduct, and can result in loss of employment, the creation of an offence recognises the harm done to victims of this exploitative sexual conduct. The creation of the charge would not preclude more serious charges, such as sexual violation, being brought in appropriate circumstances. Amendments are made to the Parole Act and the Sentencing Act to recognise the seriousness of the offence.

The bill adds a new section 138A to the Crimes Act 1961, and provides a maximum sentence of 10 years imprisonment for sexual connection between a detainer and a person in detention, and 5 years for indecent acts.

Crimes (Exploitative Sexual Conduct with Person in Detention) Amendment Bill

The Parliament of New Zealand enacts as follows:

1. Title
This Act is the Crimes (Exploitative Sexual Conduct with Person in Detention) Amendment Act 2018.

2. Commencement
This Act comes into force on the day after the date on which it received the Royal Assent.

3. Principal Act
This Act amends the Crimes Act 1961.

4. New Section 138A inserted
After Section 138 insert
"138A Exploitative Sexual Conduct with Person in Detention
(1) Every one is liable to imprisonment for a term not exceeding 10 years who has exploitative sexual connection with a person with a person in detention.
(2) Every one is liable to imprisonment for a term not exceeding 10 years who attempts to have exploitative sexual connection with a person in detention.
(3) For the purposes of subsections (1) and (2), a person has exploitative sexual connection with a person in detention (the detained person) if he or she—
(a) is a person who has control of the detained person; and
(b) has sexual connection with the detained person knowing that the detained person is a person in detention.
(4) Every one is liable to imprisonment for a term not exceeding 5 years who exploitatively does an indecent act on a person in detention.
(5) For the purposes of subsection (4), a person exploitatively does an indecent act on a person in detention (the detained person) if he or she—
(a) is a person who has control of the detained person; and
(b) does an indecent act on the detained person knowing that the detained person is a person in detention.
(6) For the purposes of this section, a person is a person in detention if the person is:
(a) a prisoner as defined in section 3 of the Corrections Act; or
(b) under arrest, or otherwise detained by a Constable; or
(c) a person who is under arrested and detained under the Armed Forces Discipline Act 1971 pending release or trial; or
(d) a service prisoner as defined in section 2 of the Armed Forces Discipline Act 1971; or
(e) undergoing a sentence, imposed under the Armed Forces Discipline Act 1971 by the Court Martial or a disciplinary officer, that includes the punishment of detention; or
(f) detained under the Immigration Act 2009
(g) detained unlawfully in the same manner as if he or she were a person to whom any of paragraphs (a) to (f) applies;
(7) For the purposes of this section a person has control of a detained person if her or she is, in relation to that detained person:
(a) the person who has lawful custody of that person; or
(b) a person who is employed by, or contracted by, the person who has lawful custody of that person; or
(c) is a person to whom paragraph (a) or (b) would apply, but for the fact the person was detained unlawfully.
(8) It is not a defence to a charge under this section that the person in detention consented.
(9)

5. Consequential amendment to Parole Act 2002
In section 107B(2) of the Parole Act 2002 after paragraph (m) insert
"(ma) Section 138A(1), (2) and (4) (sexual exploitation of person in detention):"

6. Consequential amendment to Sentencing Act 2002
In the definition of serious violent offence in section 86A of the Sentencing Act 2002 after paragraph (14) insert
"(14A) Section 138A(1) (exploitative sexual connection with person in detention):
(14B) Section 138A(2) (attempted exploitative sexual connection with person in detention):"


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