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.