Minister for the Prevention of Family and Sexual Violence Marama Davidson, also co-leader of the Green Party. Photo / Alex Burton
Labour and National have committed to considering introducing affirmative consent legislation, which would effectively shift the onus onto a person accused of sexual assault to show consent was given.
Overseas such a move has been described as crucial in tackling victim-blaming and outdated attitudes around sexual violence. Currently, New Zealand only has a definition of what consent isn’t, not what it is, which leaves interpretation up to lawyers and jurors.
The political commitments here have been described as a “huge win for survivors” by reform advocate Layba Zubair, who this year delivered a petition to Parliament with 12,000 signatures urging consent law reform.
The petition was considered by Parliament’s Justice Select Committee, which has published a report with unanimous support from its members - including MPs from Labour, National and Act - calling on the Government to consider re-examining the law on consent.
“Having a consistent definition of consent in the legislation may help to protect victims of sexual crimes,” the report said.
“We think that the Government should consider examining offences involving sexual conduct and consider including a definition of consent in the legislation.
“We suggest that any such investigation should look at the experiences of sexual violence survivors and experts in the field to ensure that all victims of sexual crimes are appropriately protected by the law.”
Both Labour and National representatives have confirmed to the Herald this will be on their agenda if elected into Government next term.
Zubair, founder of Consent Law Reform NZ and University of Auckland law student, told the Herald it was a “good surprise” to see the committee come back so fast, especially given the upcoming election.
“It’s a huge win, not only for the general public but specifically for survivors and victims of sexual assault. We’re now working on the next steps and making sure that Parliament follows through.”
According to the latest Crime and Victims survey, 25 per cent of New Zealand adults reported being the victim of at least one act of sexual assault in their lifetime, including 13 per cent of men and 36 per cent of women.
Zubair, a survivor herself, said the main issue was that the law only defined what consent wasn’t, not what it is.
“So in the courts, what plays out is that juries and judges and defence lawyers especially are able to spin their version of the truth and kind of say, ‘Okay, this is what consent could look like’.
“There have been cases and articles published where juries are told that reluctant consent or hesitant consent is still consent, whereas what we’re being taught in schools [affirmative consent] is that it is not consent.
“And that’s why an affirmative definition set in stone is so important. Lots of other countries have adopted this - we’re really behind in New Zealand.”
Overseas examples of definitions include in Canada, where it is “the voluntary agreement of the complainant to engage in the sexual activity in question”.
In New South Wales, Australia, it is “consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between the persons participating in the sexual activity”.
The law there also notes that “a person consents to a sexual activity if, at the time of the sexual activity, the person freely and voluntarily agree to the sexual activity”, and “a person may, by words or conduct, withdraw consent to a sexual activity at any time”.
Zubair said setting a clear definition needed to be prioritised and involve experts.
“Everyone’s talking about crime and justice, but no one’s talking about sexual violence. And New Zealand has an epidemic.
“Reporting to the police is an incredibly daunting and horrifying thing, having reported myself, and knowing the system wasn’t set up to protect us or to validate us.
“But to know there’s some progress and potential for change, that’s where hope comes in.”
The committee noted some aspects of the petition were already being addressed around young children.
In August, the Government introduced the Victims of Sexual Violence (Strengthening Legal Protections) Legislation Bill, which would increase the maximum penalty for sexual conduct with a child under 12 years old to 20 years’ imprisonment and provide that the offence of sexual violation does not apply if the complainant is under the age of 12 years.
The intended effect of this change is that children would no longer be questioned in court about whether they consented to sexual activity.
Justice Minister and Labour MP Ginny Andersen said she was aware of issues with the way consent was currently defined and acknowledged there was more work to be done.
Andersen said the reform work so far had focused on the youngest victims, and she would receive advice on the next phase later this year.
Minister for the Prevention of Family and Sexual Violence Marama Davidson said she had been pushing for consent reform to be part of the next phase of work, and officials had confirmed that would be the case.
“I’ve been really clear that I want to make sure that the affirmative definition of consent is in that next work,” said the Green Party co-leader.
“There are other countries where they do have an affirmative definition and it’s really important to send a clear message to everyone and especially young people, what consent actually looks like it’s going to help us a massive role in the prevention of violence.”
National Party justice spokesman Paul Goldsmith, who is also a member of the committee that supported the petition, said National is supportive of action that protects and supports the victims of sexual violence. If elected, National will consider these recommendations.