First steps to legislative change on rape

The NZ Herald is reporting that the Minister of Justice in New Zealand. is looking into changing the law around sexual violence. The article really reports no more than what the Minister said in his speech [full text]. The relevant comments are:

… I believe we need to have an open debate about the way in which sexual violence cases are conducted.

In this regard, I am currently considering potentially far-reaching reforms, including:

* The introduction of a positive definition of consent.

* A requirement that the court consider any steps the defendant may have taken to ascertain whether the complainant had consented, and

* Making evidence about previous sexual relationships between the complainant and any person inadmissible without prior agreement of the judge.

I have also asked the Law Commission to look at alternative approaches for dealing with sexual violence cases before the courts, with specific direction to investigate inquisitorial models.

This is a debate we need to have if we want to improve on the reporting rate of between 9 and 12 per cent for sexual violence offences.

The usual suspect is broadly supportive of these changes, but unsure about the moves around the definition of consent. (If you click through to read that post, don’t read the comments thread. Not that there’s anything there yet, but his commentariat is not known for progressive attitudes. It almost certainly will be vile.)

Here I have to say, the proposal is impractical. Power isn’t exactly proposing this change – more just floating the possibility. But I think consent is often implicit, not explicit, based on how someone responds to you. I think Canada may have gone down this path, but to me it reeks of almost having to sign a statutory declaration of consent before sex.

I disagree. As I have argued before, consent is a positive process, not an absence of denial. Of course there is a grey area, but that grey area lies somewhere between “she said yes” and “I’m am not sure whether she said yes”, not between, “she said no” and “she did not say no.” If this positive notion of consent is embodied in the law, then yes, people will have to be much more careful about their sexual behaviour, and whether their partner(s) is consenting to the activity. How can this be anything but a good thing?

These proposals are also very much in line with what the readers and writers of The Hand Mirror argues in our submission on the government discussion document on legislation about sexual violence. I’m sure that some of the other people and groups making submissions must have made similar arguments too. Score one for using blogging to effect positive change! And a big tick for the Minister of Justice, for continuing this process that was started by his predecessor, and continuing it so positively.

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4 responses to “First steps to legislative change on rape

  1. The proposal is completely bizarre.

    It has been the law since…. 1987.

    Evidence Act 2006

    44 Evidence of sexual experience of complainants in sexual cases

    (1) In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.

    Clearly, neither Power nor his advisers know that.

  2. Poneke, I think that’s more an argument that the current law either doesn’t work or doesn’t say what a naive reading would suggest.

    I’m also (as usual) offended that male consent is assumed.

  3. You’ve probably all caught up with this already, but I think Power has clarified that he meant to cover the exception contained in the law – “the sexual experience of the complainant with any person OTHER THAN THE DEFENDANT”

    So that under his proposals, the complainant could not be asked about his/her sexual history with the defendant or with any other person.

  4. I am studying Law in NZ. A man can only be guilty of a sexual offence if he did not have a belief that there was consent. Consent is required (not just absence of disconsent). The belief of consent must objectively be a reasonable belief for the defendant to have held under those circumstances.

    Consent cannot be implied. There MUST be a positive act of consent (either through body gestures or words).

    This is what I learned in my Criminal Law paper two years ago. In my opinion, “a positive act of consent” seems like the appropriate standard of consent to sexual activity.

    I prefer the idea of an inquisitorial system over an adversarial system in dealing with rape cases. I think an adversarial system would be more traumatic for the victim. I also dislike the highly charged, accusatory nature of adversarial systems – particularly when you have a vulnerable victim & a defendant of whom the victim is terrified. Women are very hesitant to report rape cases in our current system. If they felt less threatened by the way our system deals with rape cases, women might report rape more frequently. Under the adversarial system women feel like their character is being attacked, that they are being accused of lying, that they have to defend themselves under heavy lawyer interrogation, and that they are not being believed. If the defendant is let off due to reasonable doubt, women can feel like they were not believed & that their ordeal/experience has not been recognised. They are less likely to feel this under an inquisitorial system in my opinion, because the judge is seen as neutral & objective. Women are more likely to accept that the judge might believe their story, however, aquitted due to reasonable doubt. With a jury women are more likely to simply believe that this 12-member sliced section of the public believe that they are malicious liars.