The Auckland Pride Parade, Ponsonby Road. Photo / Dean Purcell
The Auckland Pride Parade, Ponsonby Road. Photo / Dean Purcell
ANALYSIS
Banning conversion therapy practices has unanimous support in Parliament, but a bill that would implement that is not so supported.
The Conversion Practices Prohibition Legislation Bill passed its first reading last week, with National opposing it.
Act held concerns similar to National about the potential to criminaliseparents, but supported the bill to select committee in the hopes of improving it.
Justice spokesman Simon Bridges said the party wants an exemption for all parents to ensure they won't be criminalised for being parents.
This concern came into the spotlight when Justice Minister Kris Faafoi refused to explicitly say whether parents could be jailed for stopping their 12-year-old child from taking puberty blockers.
So what does the bill say, and does National have a leg to stand on?
The first is to perform a conversion practice on a person under the age of 18 years, or a person lacking decision-making capacity. It would be punishable by up to three years' jail.
The second it to perform a conversion practice on an individual that causes serious harm, which could lead to up to five years' jail.
National Party leader Judith Collins has concerns over whether the bill could criminalise parents for being parents. Photo / Mark Mitchell
"We're not going to support parents being criminalised for trying to tell their 12-year-old they're worried about them taking puberty blockers," Collins said.
Could the bill lead to parents being prosecuted for this?
Faafoi has talked about the impact on children having to meet a harm threshold (and serious harm for adults) before criminal charges can be laid.
The clause about performing conversion therapy practices on under 18s, however, has no harm threshold.
Justice Minister Kris Faafoi wouldn't say whether parents could be criminalised under the bill for stopping their kids from taking puberty blockers. Photo / Mark Mitchell
There is a mention of harm in the clause about the bill's purpose, which is to "prevent harm caused by conversion practices and promote respectful and open discussions regarding sexuality and gender".
But that doesn't mean that any practice done by a parent on their child has to be deemed harmful before it could be prosecuted.
Whether it would be prosecuted is another matter.
Legal expert Graeme Edgeler likens the proposed crime to the criminal offence of assault or child-smacking, which are assumed to be harmful.
"It's like the law that assumes a harm is caused if a parent smacks their kid. You don't need to prove harm to a kid. You need to prove assault, which is the application of force without consent.
"Similarly, any assault is prosecutable as an assault. So with conversion practices, there is no requirement to establish harm, specifically. There is a requirement to establish a conversion practice, which, from the legislation's perspective, is a harm."
What technically is a crime?
For a crime to be committed, the definition of a conversion therapy practice has to be met.
It is defined as "any practice that is directed towards an individual because of the individual's sexual orientation, gender identity, or gender expression", and that "is performed with the intention of changing or suppressing the individual's sexual orientation, gender identity, or gender expression".
There are exceptions, including a health service provided by a health practitioner.
There is no blanket exception for parents, which National wants. If there was, a parent could perform a conversion therapy practice on their child with legal immunity, or send them to such a practice without potentially committing a civil offence.
There is some confusion over National's position here, with MP Matt Doocey suggesting that parents causing serious harm to their children should be prosecuted.
And if National won't support the bill without legal immunity for parents - which Labour would never agree to, given that parents do sometimes send their children to such practices - then it will face more hard questions within its caucus before the bill's third reading.
Legal expert Graeme Edgeler says parent-child conversations are not criminalised under the bill, but the language could be made clearer. Photo / Hagen Hopkins
Edgeler doesn't think a parent stopping their child from using puberty blockers - or simply talking to them about it - meets the definition of a conversion therapy practice.
"What is the practice that's being directed? And is it being performed? Standard conversion therapy practices are like someone who is gay or trans being sent to this counsellor or this priest, who is trying to change the person. That's what the bill is trying to ban.
"Refusing consent to puberty blockers just doesn't fit within the language of the bill as it's currently written."
Many boxes to tick before conviction, or jail
Prime Minister Jacinda Ardern has suggested that it isn't impossible that such an example could technically be an offence under the proposed law, but she says a criminal conviction would be extremely unlikely.
If a police officer thought there was a case to prosecute - regardless of whether harm was caused - many hurdles still need to be passed.
Police are guided by the Solicitor-General's prosecution guidelines, including whether there is enough evidence for a reasonable chance of conviction, and whether pursuing it is in the public interest.
The Attorney-General also has to green-light the prosecution. Would they do so if there was no harm involved?
If it proceeded to court, a judge or jury would have to decide that a crime had been committed beyond reasonable doubt, and if so, a sentence would be imposed proportionate to the crime.
That may not include any jail time, or may even be a discharge without conviction, if the judge thought the threshold for a criminal conviction hadn't been reached.
So what are the chances of a parent being prosecuted or ending up in jail for trying to stop their child from taking puberty blockers, or for having conversations with their children about gender identity or sexual orientation?
"Given that I don't think it's covered by the legislation, the chances should be none," says Edgeler.
He caveats that by saying it could be prosecuted if there was evidence of the parent doing others things at the same time that would qualify as a conversion practice, such as sending their child to counselling in order to suppress their gender identity.
The select committee could still decide that the language in the bill could be made clearer to ensure parent-child conversations wouldn't be criminalised, he adds.
