It’s 2022 and NZ law still doesn’t define what consent is

Source: Re: News

Content warning: This article discusses rape, sexual assault, and mental health.

When Layba Zubair opened up about her sexual assault she says people kept asking her: "Why didn't you report it to the police?"

By Zoe Madden-Smith of Re: News

One in four people in New Zealand experience sexual assault in their lifetime, but 94% of those assaults are not reported to the police.

Layba says it's no surprise the majority of survivors of sexual assault are not reporting their abuse because the current law does little to support them.

"If my car gets stolen, I know that if I go to the police, they will attempt to help me get my car back.

"If survivors choose to use the law for prosecution they should have the reassurance that the law supports them because the law should be built to support survivors and victims of sexual assault. But right now it’s not," she says.

While not an easy fix, Layba says consent law reform could be one way to support more survivors to come forward.

Consent in New Zealand law

Despite a lot of people knowing what consent is and how it feels - New Zealand’s Crimes Act 1961 still does not define what consent is.

Instead, the law only defines what consent isn’t.

For example, the law states a person cannot consent to sexual activity in some circumstances including:

- If they are asleep or unconscious or so affected by alcohol or drugs they cannot refuse or communicate properly

- If they lack the capacity (physically or intellectually) to consent or to refuse to consent

- If coerced or threatened

- Just because he or she does not protest or offer physical resistance to the activity

- If the person allows the sexual activity because he or she is mistaken about who the other person is or the nature of the sex act

But what is consent?

Rape Prevention Education defines consent as a voluntary and conscious agreement made between two or more people who engage in sexual activity together.

The organisation says consent is a continuous process. This means if you have said 'yes' to having sex with this person before, or even if you said 'yes' to having sex with them five minutes ago - you can change your mind at any point. Consent is never automatic and cannot be assumed.

Consent can be communicated verbally and non-verbally through body language.

The absence of verbal or non-verbal consent means consent has not been given. This means if a person simply doesn't resist or fight someone off, they still have not given consent.

The change Layba wants to see

Along with Dear Em, a support and empowerment group for young women, Layba is calling on the Government to include a clear and affirmative definition of consent in the Crimes Act.

Layba’s petition for consent law reform has received more than 4800 signatures so far.

The group believes consent law reform will help address the issues of ambiguity and subjectiveness that currently influence sexual assault cases.

"People talk about being innocent until proven guilty, but we don't even have a definition of what innocent is in our laws," Layba says.

"While the legal system may have a lot of grey areas, consent should never be a grey area. It needs to be black and white."

Senior law lecturer at Auckland University of Technology Paulette Benton-Greig says having a clear definition of what consent is written into legislation would particularly benefit consent and rape prevention educators and students who need clarity on what consent means.

However, she says a legal definition is unlikely to impact the outcome of sexual assault cases because juries are already given varying definitions of what consent is.

"While there isn't a legal definition, there is case law of what consent means. So judges have described to juries consent as a free and voluntary agreement.

"I think we need to define what reasonable grounds are as well."

What does 'reasonable grounds' mean?

To be found guilty of rape and sexual violation under section 128 in the Crimes Act, a jury or court must be convinced beyond a reasonable doubt the defendant had no 'reasonable grounds to believe the complainant was consenting.

A defendant doesn't have to have proof of consent during a trial. They can simply argue they believed the complainant consented because, for example, the complainant initiated the sexual contact or they were very enthusiastic.

"These are considered reasonable grounds," says Benton-Greig.

This side of the situation will then be weighed up against the complainant's evidence that consent was not given or consent was withdrawn.

Benton-Greig says there need to be clear and explicit steps put in place for what reasonable grounds are.

"Then we can inquire into whether those steps were taken," she says.

"We also need to prevent or reduce the amount of rape methodology that is used in the courtroom. For example, people believing that certain clothing or being intoxicated invites certain behaviour."

"In my opinion, these have much more of an impact on court case outcomes and justice than the definition of consent. But affirming the definition of consent in law will build the discussion around consent which is what we need right now."

Australia's affirmative consent laws

New South Wales introduced new affirmative consent laws in June 2022.

These laws go further and say a person will not have a reasonable belief that there is consent unless they have done or asked something to make sure.

For example, saying "they didn’t push me away" or "they didn't say no and tell me to stop" is not grounds for consent.

Despite its good intentions, in an in-depth review of consent law reform in NSW, law scholar Julia Quilter found that affirmative definitions of consent have "disappointingly" failed to help more survivors get justice.

She says sexual assault cases continue to focus on whether or not the complainant resisted the sexual contact and the success of a trial is still heavily reliant on whether the complainant sustained injuries - not on whether all parties affirmatively gave consent as the new law intends.

Along with Benton-Greig, Quilter says in her research that including ethical examples of affirmative consent in the law could help clarify what consent looks like to juries, lawmakers, and the wider community.

"Criminal law-making should embrace the opportunity to model and communicate behaviours that positively exhibit, rather than continuing to rely heavily on defining by absence," she says.

'The law doesn't support survivors,' Layba says

Whether it's including a definition of consent or going further and including examples of what affirmative consent looks like - Layba says it is clear consent laws in New Zealand need improvement.

From 2014 to 2018 only 31% of cases reported to police resulted in court action for the perpetrator, 11% resulted in a conviction and 6% resulted in a prison sentence.

"That's why this campaign is so important to me," Layba says.

"Those who choose to go to law for support should and deserve to get support. Survivors should be confident they will be helped. Just knowing the law supports you is so validating."

Where to get help:

24-hour nationwide helpline Safe2Talk: 0800 044 334

24/7 helpline Wellington Sexual Abuse HELP: 04 801 6655

RapeCrisis directory to services across the country: www.rapecrisisnz.org.nz

For education programs around preventing sexual violence (not for crisis support): RespectEd

Male Survivors of Sexual Abuse Aotearoa: www.malesurvivor.nz

To report your experience to the police, call 111 or the non-emergency line 105