Consent and the law in Aotearoa
Consent is a free agreement made voluntarily and consciously. Consent is a continuous process - this means that even if you have said "yes" you are still allowed to change your mind and withdraw your consent.
How is consent defined at a community level?
Specialist sexual violence prevention services often describe consent as a free agreement made voluntarily and consciously between two or more people to engage in sexual activity. In the community, our understanding of consent is a continuous process meaning that saying ‘yes’ initially does not mean that you are unable to change your mind or that consent is automatically given due to past sexual activity/contact. While consent can be communicated verbally and non-verbally, silence or the absence of talking and body language does not affirm consent. We also know that consent cannot be given if a person is unconscious, asleep, or under the influence of alcohol and drugs. In Aotearoa, New Zealand, people know the age of consent is 16 years old, meaning that consent cannot be legally given by someone under the age of 16 years old.
So, if consent is as simple as this how are we not able to hold those who do not ensure they have consent for sex accountable? This is because our consent laws in New Zealand fail our communities.
What are the current consent laws in Aotearoa New Zealand?
TW: this section discusses rape, sexual abuse and the criminal justice system
When we are in school, we are taught through classroom presentations, and tea consent videos that consent means a person simply saying yes or no and that anything other than yes means no. However, consent is far more complex than enthusiastic affirmative answers, and this is because of the lack of clarity around consent laws in Aotearoa, New Zealand.
Unlike in other jurisdictions, such as Canada and New South Wales, Aotearoa, New Zealand law does not define what consent is. While past case law has offered various definitions of what consent entails, the Crimes Act 1961 defines what consent is not.
Section 128A of the Crimes Act 1961 provides a non-exhaustive list of what consent is not and when someone cannot give consent. A person cannot give consent;
while unconscious or under the influence of drugs and alcohol
if they lack the capacity (physically or intellectually) to consent or to refuse to consent
if coerced or threatened
even if they are silent or have not physically resisted
Under section 128, sexual violation is defined as the act of unlawful sexual connection without consent and without a reasonable belief in consent. A defendant does not have to prove proof of consent during a trial. They can argue that under this section of the Act, they believed on reasonable grounds that the complainant consented. This may be based on the defendant's perception of the complainant's behaviour/conduct during the sexual activity. In turn, this can also allow a jury's prejudices/assumptions on what they believe is reasonable to affect the outcome of the trial.
Furthermore, in determining whether consent was given, it is based on whether the jury accepts the complainant’s evidence about the decision they made. As explained, the defendant may bring evidence to point to the complainant’s behaviour or conduct during the sexual activity. This can include the defendant’s account of the complainant’s participation or that they had reasonable belief that the complainant consented through such conduct/behaviour.
Since the definition of consent at law still remains quite ambiguous, in most trials regarding consent, it is a question of fact- whether the complainant consented or not? The jury is given directions “on all elements of the offence with which the defendant is charged … even if consent or reasonable belief in consent are not put in issue by the defence”(Christian v R).
The 2017 Christian v R. Case
TW: this section discusses rape, sexual abuse and the criminal justice system
A significant case on consent in Aotearoa, New Zealand, is the 2017 case Christian v R. This case concerned the continuous rape of a teenage girl who was effectively in the appellant's care. The appellant was an older man who ran a church to which both the complainant and her mother belonged.
Key aspects to this are that within section 128A of the Crimes Act 1961 age for consent is not defined. It is only when the Crown prosecution chooses to charge the alleged offender with section 132 sexual conduct with a child under 12, or section 134 Sexual Conduct with a young person under 16 that age is a factor for consent. Still, these are charges that hold a lesser sentence length. In Christian v R, the prosecution chose other charges, and consent was able to be put into question because age is not defined in section 128A.
Over the course of three years (1996-1999), the appellant continued to rape the complainant. The appellant was convicted of three counts of sexual violation by rape under section 128(2) of the Crimes Act.
In the Supreme Court, the judges discussed the significance of silence and reasonable belief in consent. A key point in the Supreme Court’s judgement that is significant and incredibly dangerous for the future of consent law in Aotearoa, New Zealand, is the discussion/establishment of ‘relationship expectations’, which may provide reasonable grounds to infer consent in the absence of protest.
In determining that 'something more' than a lack of protest is required before it is reasonable for a defendant to presume consent, the Supreme Court explained that, even in the absence of a positive expression of consent (meaning an affirmative answer), conduct or circumstances of the activity might infer a basis of consent. In defining what 'circumstances’ qualify, the Supreme Court stated that 'relationship expectations’ is an example of the circumstances in which a complainant’s silence may infer consent.
The Supreme Court explains that participants who are in a relationship where expectations have developed over time and on a single occasion, the sexual activity follows those expectations. This can serve as a basis for inferring consent if there is no evidence to show that either participant no longer embraces these expectations.
This is problematic for many reasons. A person's past willingness to engage in sex should not be heavily relied on nor is it sufficient to prove consent on the present occasion. It is not logical for ‘relationship expectations’ to be treated as reasonable grounds to believe that consent was given.
While a prior sexual relationship can be relevant information in determining consent and a reasonable belief of consent, it is certainly no way an indication or sufficient proof to prove that a person wished to engage in sexual activity at that particular time or at all.
It also fails to consider vulnerable complainants in relationships where sexual violence is a recurrence as well as 'relationships' in which a participant has been groomed. This case is a clear example of both, as a prior sexual relationship cannot be the basis of consent if the relationship itself is unhealthy and a complainant feels that they are unable to voice their protest due to their own safety.
This reasoning also undermines section 128A(1), which clearly states that silence does not always imply consent. Therefore, how can a complainant’s past lack of protest be treated as a basis to infer consent for future sexual activity if silence would be inadequate to assume consent on a single occasion of sex under the Crimes Act.
Unfortunately, as a Supreme Court judgment, this will remain a precedent for future cases, meaning it will more than likely be binding on subsequent cases on consent.
At Dear Em, we believe that consent law reform is necessary to address some of the current issues and ambiguities that currently exist within New Zealand consent law. Keep an eye on our socials as we share more about these issues over the coming weeks, and what we can do to create positive change in this space!
Sources that informed this article:
Crimes Act 1961, section 128 & 128A.
Alison Mau “He said, she said: How we might tackle changes to our sexual consent laws” Stuff.
Christian v R [2017] NZSC 145.
Emily Blincoe Yes, No or Maybe? The “odd” result in Christian v R – New Zealand Women’s Law Journal (2018).
Andrea Ewing “Consent and ‘Relationship Expectations’ – Christian v R” New Zealand Criminal Law Review 2017.
