Monday, 29 September 2008

Sexual Violence Discussion Document

Back in August, Anjum alerted us to the discussion document, "Improvements to Sexual Violence Legislation in New Zealand." You can download a copy of the d.d. from the Ministry of Justice.

We have worked up a submission on the d.d., which is over the jump. I've turned off comments on this post, but we are sending a message about it to members of our Facebook Group, Readers and Writers of The Hand Mirror. The submission is due on 30 September, and we are hoping that some of you will want to add your names to it. So please, chime in via the Facebook group, and let us know if you would like to add your name to the list of people making the submission.

If you're not so keen on making a comment via Facebook, you could send an e-mail direct to me. My e-mail address is on my blogger profile. I may put up a post of the messages I get (if any!), with identifying material removed, of course. However, I promise faithfully that if I get any misogynist messages, I will publish them in full, with the writer's e-mail address and IP address.

Click through to read the submission.

Submission on

Improvements to Sexual Violence Legislation in New Zealand

Government of New Zealand and Ministry of Justice Public Discussion Document

August 2008

This submission has been prepared by (names of people who support the submission).

We are writers and readers of a feminist blog, The Hand Mirror. The Hand Mirror aims "to encourage and promote women bloggers, primarily those who identify as from Aotearoa New Zealand, and not just those writing specifically within political blogs."

The Hand Mirror is ranked as one of the top political blogs in New Zealand. It is the only group feminist blog in New Zealand.

Thank you for the opportunity to comment on the discussion paper, Improvements to Sexual Violence Legislation in New Zealand.

We endorse the commitment to taking innovative approaches in respect of sexual violence (paragraph 20). We note that the paragraph suggests that legislative change alone will not be sufficient to make a difference to sexual violence in New Zealand. This should not be taken as a reason to do nothing.


Issue One: The legal definition of consent

As discussed in the paper, behaviour that indicates "consent" is a continuum, ranging from behaviour that indicates total non-consent, such as saying, "No," to behaviour that indicates full consent, such as saying, "Yes." As with any continuum, it is easy to make judgements about each end of the continuum. However in between there is a grey area, where behaviour may or may not indicate consent.

The continuum can be illustrated like this.

Until recently, the absence of denial was treated as consent. That is, any behaviour that didn't fall between A and B, explicitly denying consent, was taken as giving consent.

Attitudes and the law are now changing. Consent is now taken to entail a positive process, not just an absence of a particular behaviour. However, it needs to be made very clear that, "She didn't say no," does not mean she said, "Yes." That is, behaviour in the grey area, from B to C, does not mean that consent has been given. For there to be consent, there must be behaviour in the area from C to D. Consent must not be just the absence on non-consenting behaviour, but the actual and unequivocal presence of consenting behaviour.

For this reason, we endorse option 2: that the Crimes Act 1961 be amended to include a positive definition of consent to sexual activity to sit alongside the list of circumstances where consent is deemed as not being present. We agree that the definition should include concepts of freedom, choice, and the capacity to make choices. The particular models we prefer are the United Kingdom model which includes freedom, and capacity, and the South Australian model, which refers to sexual activity, not just sexual intercourse.

We agree with the drafters of the discussion paper that this may be difficult to put into law, and that the law change alone will not change behaviour. However, given the appalling rate of sexual violence against women, and the outrageously low prosecution and conviction rates for sexual offending, there should at least be an attempt to improve matters through changing the law. The fact that law changes alone won't effect attitudinal change indicates that an education program is required, not that the law change should not be made.

Issue Two: The reasonable belief test

Roughly, there are two defences to a rape charge. The first is that the rape did not take place in the first place, that is, there was no sexual activity, either because there really was no sexual activity, or if there was, then it was a different person (the charge is a case of mistaken identity). With the increasing use of sophisticated DNA testing, this defence can often be tested against actual physical evidence.

The more difficult defence is one of consent. That is, there was sexual activity, but the complainant consented. The alleged rapist believed that consent had been given, or made a mistake about whether consent had been given.

The defence of "mistaken belief about consent" is abominable. Even though other legislatures allow this defence, albeit in limited circumstances, being mistaken is not normally a defence to crime, or even more minor offences. For example, when it comes to traffic offences, motorists are not allowed to claim in defence that they made a mistake in reading their speedometer. It is hard to understand why this sort of defence is not acceptable in respect of traffic offences, but is permissible when it comes to women's autonomy in respect of their own bodies.

The discussion paper proposes reinforcing the reasonable belief test. That is, objectively, based on the evidence available to the accused, a reasonable person standing in the accused's shoes would believe that consent had been given. In support of this, the United Kingdom law says that the reasonableness of a belief must be determined having regard to all the circumstances, including the steps (if any) that the accused took to make sure that the complainant had consented.

The discussion document emphasises the difficulties of the "reasonable belief" test. It claims that juries are already required to consider the circumstances and the steps that the accused took, that the judge can already direct the jury's attention to these matters in her or his summing up, and that in any case, this will still result in a focus on the behaviour of the complainant, because the accused is not required to take the stand.

These are all known difficulties in rape cases. What they suggest however, is not that we should do nothing because changes to the "reasonable belief" test won't have any effect. Instead, we should be looking for a real change to the test, that without reversing the presumption of innocence, nevertheless makes it clear that simply saying, "I thought she consented" is not enough to constitute a defence.

We suggest that if an accused raises the defence of consent, then the accused must show on what grounds he believed that consent was given, including the steps he took to ensure that consent was given. That is, the burden of proof rests with the person raising the defence of consent.

This simply requires that the person who uses the defence gives proof of it. Presumably, if consent can't be proved, then the charge is appropriate. This will necessarily mean that men must be a lot more careful with respect to their sexual behaviour. We fail to understand how this can be regarded as anything other than a good thing.

Failing changing the law so that the accused must show on what grounds he believed consent was given, then we endorse option 2, that the Crimes Act 1961 be amended to require that, when determining whether the accused had reasonable grounds to believe the complainant consented to the sexual activity, the court must have regard to all the circumstances relevant to the case including any steps the accused may have taken to ascertain whether the complainant was consenting.

Finally, we are a little surprised that after noting the need for innovative approaches (paragraph 20), the entire discussion about reinforcing the reasonable belief test is couched in negative terms about why particular approaches won't work. The overall effect is one of rejecting change because it may not work, rather than attempting to actually do something about the horrifying level of sexual violence, and shockingly low prosecution and conviction rates for sexual violence in New Zealand.


The "rape shield" is the law that means that a person who has complained of rape can be cross-examined on their sexual history. In New Zealand, the rape shield applies to sexual experience between the complainant and any other person, but the sexual history between the complainant and the accused can be brought into evidence.

As a matter of logic, if consent must be obtained for every sexual act, then whether or not the complainant had consented to sexual acts with that person in the past is irrelevant.

This means that the rape shield should be extended to the previous relationship, if any, between the accused and the complainant.

We endorse option 2, that the Evidence Act 2006 be amended to extend the rape shield so that evidence about previous sexual experience between the complainant and any person, including the accused, is inadmissible without prior agreement of the judge.


The third part of the discussion paper asks alternative models.

We have chosen to concentrate on one area that is covered in the discussion document, the investigation and prosecution of rape cases, and one area that we believe is important, education.

We believe that there should be specialist units for investigating and prosecuting rapes and sexual violence cases. Further, these units should have a high proportion of female officers.

One of the known difficulties of rape cases is the reluctance of police to investigate and prosecute rape cases. Furthermore, in recent years we have seen some very disturbing cases in New Zealand, where men have been convicted of raping young women while they were serving police officers. It is hard to believe that a police force in which some officers themselves rape women will also rigorously investigate and vigorously prosecute cases of rape.

Over time, specialist units would develop considerable expertise in investigating and prosecuting acts of sexual violence. In the shorter term, it would be worth having as many women officers as possible working in the area, to create a less threatening atmosphere for complainants, and because women may be more likely to believe other women when it comes to investigating rape cases.

There should be an extensive education campaign to accompany any law changes. The discussion document itself refers repeatedly to the small likelihood that any change in the law will lead to changes in behaviour. As we said earlier, what that should suggest is not that the law should remain unchanged, but that there is a need for serious and on-going education of men and women about sexual violence, and in particular, about the nature of consent.

There should be a comprehensive media campaign about sexual violence, similar to the current campaign about domestic and family violence. In addition, education about sexual violence, and in particular about the nature of consent as a positive process, not just the absence of denial, should be included in school sex education programmes.