Labour has clarified its plan to change consent laws to better protect survivors of sexual assault would not shift the burden of proof to defendants, after a headline shared on the party's social media platforms caused confusion.
On Friday night, the party shared a news headline that read: "Election 2023: Labour to campaign on overhauling consent laws, put onus to prove victim said 'yes' to alleged perpetrator." The news article included a line that said the law would be changed so it is the person accused, rather than a complainant, who would have to "prove they did have consent".
In criminal cases in New Zealand, it is up to a prosecutor to prove beyond a reasonable doubt a defendant is guilty of committing an alleged offence. Essentially, that means the defendant does not have to prove their innocence.
Labour confirmed to 1News today this aspect would not change under their proposal, but a spokesperson said they understood how the headline could be taken to mean the burden of proof would be shifted from a complainant to the defendant because of the complexity of consent law.
The social media posts were taken down after 1News' questions.
The posts were shared after justice spokesperson Ginny Andersen said earlier on Friday the party would "modernise consent laws in line with other jurisdictions to better protect victims of sexual crimes" if re-elected.
“For too long victims of sexual violence have been re-traumatised and silenced by outdated laws that don’t properly protect them,” Andersen said.
“Work will include exploring the introduction of a positive definition of consent — defining what consent is rather than what it is not — and examining offences involving sexual conduct to see whether they are fit for purpose."
Currently, the Crimes Act says a person cannot consent to sexual activity under certain situations, such as when they're asleep, are coerced, or lack capacity physically or intellectually. This contrasts with a "positive definition" that explicitly states what consent is — for example, that it is voluntary, mutual, and communicated verbally and non-verbally rather than silence or a lack of resistance.
Labour's proposal comes after Layba Zubair delivered a 12,000-strong petition to Parliament in 2022.
“It is vital that we reform our consent laws to make them more effective in holding perpetrators accountable for sexual violence and assault,” Zubair, who has spoken publicly about being sexually assaulted and her experience through the courts, said at the time.
“I think this petition, at its core, is sort of a testimony to 13-year-old me who was failed by the legal system again and again.
"I know for a fact after this petition that there are so many young women, and so many other young people, who are going through the same struggles with the legal system, and I wouldn’t wish that on anyone.”
MPs from Labour, National, the Greens, and ACT met with the petitioners to support their campaign.
In August, Labour's social media team incorrectly claimed a National/ACT government would add interest back on all current student loans on an Instagram post. The sentence was later removed.
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