Consent Law Reform in Aotearoa
The importance of consensual relationships, exposing rape myths and demanding accountability from complacent institutions protecting offenders are strong sentiments shared by youth today. The viral ‘Tea Consent’ video has almost become a staple in consent education workshops, workplace training sessions and online threads. Young people are becoming increasingly vigilant, lest intolerant, of both societal and personal attitudes alike which proliferate sexual abuse or disempower victims. With the public opinion squarely poised to condemn the status quo and even essentialise compulsory sex education in schools, why then, does the judiciary pathetically lag behind in addressing sexual violence? Why is it, that in most cases, the law is far more regressive in the rally for women’s rights, rather than a formidable arbiter?
Admittedly, it wasn’t until after I took LAW 201 (Criminal Law) that I also became aware of how little regard the criminal justice system has for victims of sexual violence. That grim reality is appalling given the high prevalence of sexual violence in this country itself. The statistics illustrate a very stark reality for young kiwis, with 20% of female and 9% of male students being touched sexually and or forced to carry out sexual acts against their will. Among this demographic, 37% reported experiencing severe sexual violence yet more than 50% had never told anyone about the fact afterwards. More broadly speaking, 24% of women and 6% of men reported having experienced sexual violence during their lives. Notably, this is without mention of how the LGBT+ community is particularly vulnerable to facing sexual violence. When nearly a quarter of women experience this deplorable form of violence, how does our legal system seek to prevent further injustice?
The simple answer is it does not. Currently, the Crimes Act 1961 does not provide an affirmative definition of consent. It merely sets out what consent isn’t, listing narrow scenarios during which the law states that a person cannot consent to sexual activity. Some circumstances include:
If the person is asleep or unconscious or so affected by alcohol or drugs that they cannot refuse or communicate properly
If the person lacks capacity (physically or intellectually) to consent or refuse consent
If the person is coerced or threatened
If the person fails to protest or offer physical resistance to the activity
If the person consents to the sexual act because they are mistaken about the identity of the other person or nature of the act
Thus, it comes as no surprise that a harrowing gap between law and life still exists today. To provide another example, the earliest legal measures to protect women from male-partner violence weren’t implemented till 1982. Furthermore, marital rape was criminalised as late as 1985!
Rape Prevention Education defines consent as a voluntary and conscious agreement made between two or more people who engage in a sexual activity together. The process of giving consent is ongoing and cannot be assumed through a total lens at any point. Even if one says “yes” to sex a mere five minutes beforehand, they can just as easily change their mind and stop in the moment. Consent can be indicated either verbally or nonverbally through body language. Absence of either can be taken as no consent being given. This means even if a person doesn’t resist or fight someone, they still haven’t consented.
Consent law reform advocates believe in the importance of amending the law to better reflect current societal standards and ensure that survivors can confidently rely upon the law if and when they choose to report sexual violence. The overwhelming culture of silence surrounding sexual violence has not only protected perpetrators of such crimes, but wholly disempowers survivors and erodes their trust in the criminal justice system. And honestly, who can blame them?
As it stands, defendants can argue on ‘reasonable grounds’ that the complainant had given their consent, when undergoing a charge for either rape or sexual violation under section 128 of the Crime Act. The defence counsel must prove to the jury or court beyond a reasonable doubt to succeed on this point. There are no legal requirements to present proof of consent during a trial, and it is not uncommon for defence counsel to argue that the complainant initiated sexual contact in the first place or was enthusiastic during the act itself. It then becomes the defendant’s words against the jury or court’s decision, with no formal opportunity for the complainant to tell their side of the story.
While jury pools are intended to be wholly impartial and immune to external bias, the reality is that many jurors still internalise rape myths and make determinations blatantly reflective of them. As much as judges can refer juries to more apt and clear-cut definitions of consent in more modern case law, people still believe that wearing revealing clothing or being intoxicated invites sexual behaviour. Victim blaming is alive and well in the courtroom and we cannot pretend otherwise.
Consent law reform campaigns seek to demand a more affirmative standard of consent in criminal law. But their effect is much more profound than that. Student female activist, Layba Zubair, speaks to the resilience, solidarity and overwhelming support she draws from her fellow advocates of consent law reform. While the very act of speaking up about sexual abuse is fundamentally daunting and more often than not, acutely isolating, Layba attested to the resonating impact of this campaign for many young people. She recalls finally handing over the petition for consent law reform to the Minister for the Prevention of Family and Sexual Violence, Marama Davidson on the Parliament steps:
“But now I know that I'm not alone in my hardship. And I know that because 12,000 people who signed agreed with me. They agree with me when I say that right now, the definition of consent in our current laws does not reflect the need for free and voluntary agreement at the time of the act.”
The most recurring argument against consent law reform, ironically, originates from the legal community itself. The criticism does not manifest a desire to undermine potential meaningful accountability measures for perpetrators of sexual violence, but more crucially highlighting the likely ineffectiveness of law reform on actual sexual crime incidence. For example AUT legal scholar, Paulette Benton-Greig, maintains that a legal definition is unlikely to impact the outcome of sexual assault cases because juries are already given varied definitions of consent.
Overseas jurisdictions give us a frame of reference for such concerns. New Zealand’s neighbouring jurisdiction, Australia, recently implemented affirmative consent laws in New South Wales. As of June 22, the Australian state law states that a person will not have a reasonable belief that consent was given unless they have acted or verbalised something to that fact. Testimonies of “they didn’t push me away” or “they didn’t say no” no longer stand as grounds for consent. Despite good intentions, legal scholars such as Julia Quilter lament the minimal impact of the law reform on victim justice. Many sexual assault cases continue to focus on whether or not the complainant resisted sexual contact or sustained severe injuries - not on whether mutual consent was guaranteed as the new law requires. On a more promising note, Quilter’s research also revealed that including more ethical examples of affirmative consent in legislation could clarify any residual ambiguities. She notes, “Criminal law-making should embrace the opportunity to model and communicate behaviours that positively exhibit consent, rather than continuing to rely heavily on defining by absence,” she says.
I think Quilter’s words on consent legislation rings just as true for the consent law reform movement in general. Layba Zubair maintains that while she may not have all the answers, she believes that the strength of the consent law reform movement lies in its openness towards collaboration and profoundly empowering impact on the female collective - particularly marginalised survivors of sexual violence. From Thursdays in Black (a nationwide student-led campaign aimed at preventing and responding to sexual violence in tertiary spaces) and InsideOut Kōaro (a national charity dedicated to making Aotearoa safer for all rainbow youth), Layba recounts the overwhelming support the campaign has received across mutually-driven activist initiatives. While amending the law may not be a sufficient response on its own, there is no apt justification for not implementing such legal measures in addition to comprehensive sex education in schools, making reproductive healthcare more accessible and other intersectional solutions.
The fight for the legal protection of consent rights, unable to be divorced from the broader mobilisation for gender equality, is far from novel and has been growing for multiple decades now. With the current normative framework set and leading institutions gradually succumbing to critical pressure, the time for consent law reform has never been more pronounced in New Zealand.