OIA 121293 Layba Document pack.pdf

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INFORMATION
OFFICIAL
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Document 2
Hon Kris Faafoi, Minister of Justice
Further advice on sexual violence in the criminal law
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Date
01 April 2022
File reference
Action sought
Timeframe
Agree that:
At your convenience
Out of scope
• officials will discuss the potential next steps of this work with you
next week.
Telephone
First
INFORMATION
Name
Position
(work)
(a/h)
contact
Brendan Gage
General Manager, Criminal
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Justice
Sally Wheeler
Policy Manager, Harm
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Reduction and Public Safety
Corinne Mcilwrath  Policy Advisor, Harm
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Reduction and Public Safety
Minister’s office to complete
Noted
Approved
Overtaken by events
Referred to:
  Seen
  Withdrawn
Not seen by Minister
Minister’s office’s comments
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Purpose
1.
This briefing provides you with the advice you requested Out of scope


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Executive Summary
2.
In December 2021, we briefed you on the proposed scope and approach to the next
stage of policy work on sexual violence. You agreed that the work focus on Out of scopeissues
related to sexual violence in the criminal law: Out of scope
the definitions of
consent and Out of scope


Out of scope
INFORMATION
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Background
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Out of scope
9.
In December 2021, we briefed you on the proposed scope and approach to the next
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stage of policy work on sexual violence. You agreed that the work focus on the criminal
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law, targeting

Out of scop areas where the law may not be fit-for-purpose. Out of scope


Out of scope
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Initial proposed scope
Out of scope
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Out of scop policy issues are summarised below
Out of scope
INFORMATION
•
Definition of consent: Sexual violation occurs when no consent has been given
by the complainant. Although the absence of consent is crucial for proving the
offence, the term is not explicitly defined in legislation. Instead, the Crimes Act
1961 provides a non-exhaustive list of situations that do not amount to consent
(i.e., a person has not consented if he or she is asleep). Case law has determined
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that “something more” than passivity or silence is required to indicate consent but
left open what ‘something more’ might be.2
Out of scope
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2 Christian v R [2018] 1 NZLR 315
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Revised approach
We recommend consulting Out of scope
before deciding which to prioritise
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Recommendations
31.
It is recommended that you:
1.
Note in December 2021, you agreed to focus the next stage of sexual
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violence policy work on four issues in the criminal law. You also agreed for
officials to undertake targeted consultation with experts as a first step.
2.
Note the information in this briefing on Out of scope
and the advice on how these issues could
be included in the work.
3.
Agree that officials could undertake targeted consultation with experts on all
YES / NO
seven issues related to sexual violence and abusive behaviours in
relationships:
Out of scope
•
Definition of consent
Out of scope
INFORMATION
and that officials will discuss this with you further next week.
4.
Note that if you agree to the revised approach set out in this briefing, we
could come back to you in August 2022 with a summary of insights from the
consultation, and to seek your direction on the pace and scope of the work.
Sally Wheeler
Policy Manager, Harm Reduction & Public Safety Policy
Criminal Justice
APPROVED SEEN NOT AGREED
__________________________________
Hon Kris Faafoi
Minister of Justice
Date
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Document 3
Hon Kiri Allan, Minister of Justice
Family violence and sexual violence in the criminal law – summary of key issues and
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forward work
Date
31 August 2022
File reference
Action sought
Timeframe
Indicate which key issues within family violence and sexual violence in the  At your convenience
criminal law you are interested in prioritising, and
Agree to meet with officials to discuss how this work may fit within the wider
Justice work programme this parliamentary term.
Telephone
INFORMATION  First
Name
Position
(work)
(a/h)
contact
Brendan Gage
General Manager, Criminal
Out of scope
Out of scope
Justice
Sally Wheeler
Policy Manager, Harm
Out of scope
Out of scope
Reduction and Public Safety
Corinne Mcilwrath  Policy Advisor, Harm
Out of scope
Reduction and Public Safety
Minister’s office to complete
Noted
Approved
Overtaken by events
Referred to:
Seen
Withdrawn
Not seen by Minister
Minister’s office’s comments
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Purpose
1.
This briefing sets out key issues and potential reforms within
a
Out of scop
reas of family
violence and sexual violence in the criminal law, and seeks your direction on forward
work.
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Executive Summary
1.
In 2019, Cabinet agreed to progress several of the Law Commission’s
recommendations in its report Improving the justice response to victims of sexual
violence. This included long-term work to improve justice outcomes, support victims
in the criminal justice system, and prevent re-traumatisation.
2.
We have progressed this work by analysing priority issues within family violence and
sexual violence in the criminal law.
3.
We have completed consultation on Out of scope
: sexual crimes and the concept
of consent, Out of scope

While our analysis showed
comprehensive reform may be beneficial Out of scope
INFORMATION
key issues that could be addressed independently, if prioritised:
Out of scope
•
the current characterisation of consent can lead to unjust outcomes
Out of scope
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Background
6.
In 2019, Cabinet agreed to progress several of the Law Commission’s
recommendations in its report Improving the justice response to victims of sexual
violence. This included work to improve court processes to reduce re-traumatisation
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and longer-term work to improve justice outcomes and support victims navigating the
criminal justice system.
7.
The first stage was given effect through the Sexual Violence Legislation Act 2021,
which was passed in December 2021.
8.
Since then, officials have progressed the next stage by identifying and analysing
priority issues with family violence and sexual violence in the criminal law, many of
which are long-standing areas of interest to stakeholders. These include:
•
consent in sexual crimes, including how this affects children and young
people and whether a clearer definition of consent is needed
Out of scope
INFORMATION
9.
In May 2022, the former Minister of Justice directed officials to consult on
Out of scope
Following a recent, highly publicised sexual violence
trial in Manukau District Court, we added consent in sexual crimes to this list.
10.
To ensure we had a full grasp of the issues and potential solutions, we consulted with
internal and external stakeholders, including academic and legal experts, specialist
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service-providers, relevant government agencies, and crown entities.1 Consultation
confirmed and clarified significant and complex issues across each of the four areas.
Out of scope
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Sexual crimes and the concept of consent
Overarching problem definition
14.
Sexual violence is one of the most abhorrent crimes a person can experience. The
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violation of one’s body, mind and wairua can cause permanent damage to a victim’s
overall  sense of self and wellbeing.  It is therefore important that the criminal law
appropriately recognises and responds to sexual violence by supporting victims and
holding perpetrators to account.
15.
Sexual crimes in New Zealand are dealt with in ss 127 – 144 of the Crimes Act 1961.
Over the years, stakeholders have expressed  persistent  and increasing concern
about the way sexual crimes are described and provided for in the law.
16.
Within this part of the Crimes Act, the primary offence is s 128B – sexual violation.
This offence comes with the highest maximum penalty, and hinges on establishing
whether or not there was consent for the sexual activity. Therefore, what consent
means and who it applies to is incredibly important.
17.
Currently, the legislation sets out a non-exhaustive list of circumstances  where
allowing sexual activity does not amount to consent, but it does not set out a clear
definition of what consent is.
18.
We are aware that, under the current set ings:
1 We consulted with New Zealand Police, Oranga Tamariki, Ministry for Social Development, ACC, Netsafe,
Office of Legal Counsel, the Chief Victim’s Advisor, the National Coalition of Independent Women’s Refuges,
Tauranga Women’s Refuge, Māori Women’s Refuge Wel ington, Te Ohaaki  a Hine – National Network Ending
Sexual Violence Together, and the Coalition for the Safety of Women and Children. Given the wide range of
subject matter, not every group was consulted on al  four areas.
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•
consent can be inappropriately applied to children and young people
•
victims can be re-traumatised by court proceedings, and
•
victims can face unjust outcomes.
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19.
For example, in Christian v R the Supreme Court determined that “something more”
than silence or passivity is required to establish consent but left open what that
“something more” might be. In this case, the defendant was an adult man facing three
charges of rape against a young girl, who was aged 13 or 14 at the start of the abuse.
The defendant was found guilty of the first charge of rape, but was acquit ed of the
second two. Because the abuse spanned multiple years, the Court considered that
the ongoing sexual activity between the defendant and complainant may have led to
“relationship expectations” developing over time, which could cause the defendant to
reasonably believe the girl had consented.
20.
The outcome of the Christian case highlights that under certain charges, young
people can be seen as capable of consenting to sexual activity – this can cause re-
traumatisation. The outcome also demonstrates that the lack of a clear definition of
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consent can leave it open to potentially inappropriate interpretation – this can lead to
unjust outcomes.
21.
While we consider the broader sexual crimes part of the Crimes Act would benefit
from review (and more information about these aspects can be found in Appendix 2),
these are two key issues that could be prioritised in the short-term to support bet er
outcomes for victims of sexual violence. These are set out in more detail below,
followed by possible approaches to reform.
Out of scope
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Key Issue 2: The current characterisation of consent in the law can lead to unjust outcomes
28.
While the presence of consent is a crucial element to whether or not a sexual violation
has occurred, the concept itself is not clearly defined in the Crimes Act. Section 128A
sets out the non-exhaustive list of circumstances where allowing sexual activity does
not amount to consent, such as if the person is asleep or mistaken about the other
person’s identity. However, this negative characterisation of consent fails to describe
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what consent actually is, and we understand that this lack of clarity leaves the concept
open to a wide, sometimes inappropriate, interpretation.
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29.
In addition to the lack of a clear definition, we have also heard there are some issues
with how s 128A describes what does not amount to consent. For example, a person
does not consent if they are “so affected by alcohol or some other drug that he or she
cannot consent,” but many people have different perceptions of what “so affected by
alcohol or some other drug” looks like in reality. We have heard that this phrasing is
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too vague to be effective in court, and juries lack clear guidelines for how this
circumstance should be measured.
30.
It is also not clear whether the circumstances that do not amount to consent also
apply to a reasonable belief in consent. Some advocates recommend s 128A should
extend to both elements of the offence (presence of consent and reasonable belief
of consent), though we consider this should be investigated further.
31.
Young advocates have said the current law does not reflect what young people today
are being taught about consent and healthy sexual relationships.2  Sex education
programmes define consent in a range of affirmative ways, often simplifying  the
concept as an ‘enthusiastic yes,’ and emphasising that consent is needed every time
before a sexual act occurs. While we recognise the characterisation of consent for
the purposes of education should not necessarily equate to the construction of the
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criminal law, we note young people may be disappointed that the current legislation
does not match their understanding.
32.
Having a clearer definition of consent, by specifying what it is, and clarifying what
does not amount to consent, would be a good step toward improving justice outcomes
for victims. In recent  years,  many  comparable  jurisdictions  have  reformed  their
definition of consent. There are several examples of what a clear definition could look
like  –  some include  time constraints,  some require verbal acknowledgement,  and
some recognise that consent can be granted through actions alone.
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33.
Work on  this issue is likely to be controversial and at ract public interest. Public
engagement would be crucial to determine the right definition of consent for the New
Zealand context.   THE
Potential area for reform
Legislative change to create a clear definition of consent – by specifying what it is, and potentially,
clarifying what circumstances do not amount to consent (noting public engagement would be crucial)

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2 In 2020 the Ministry of Education developed new guidelines for schools to strengthen sex education
programmes – which now cover consent, gender norms and identity, sexual orientation, and critiquing societal
ideas of relationships.
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Next steps
INFORMATION
76.
Commencing this work is likely to have implications for the wider Justice work
programme. Officials would be happy to meet with you to discuss this further.

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Recommendations
77.  It is recommended that you:
1.  Indicate the key issues you are interested in prioritising:

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Out of scope
1.2 The current characterisation of consent can lead to unjust outcomes
YES / NO
Out of scope
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OFFICIAL

Sally Wheeler
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Policy Manager, Harm Reduction & Public Safety Policy

Criminal Justice

APPROVED  SEEN     NOT AGREED

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Hon Kiri Allan
Minister of Justice
Date       /      /
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Appendix 1: Sexual violence and family violence in the criminal law – potential areas for reform
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Area of FVSV
Key issue
Potential area for reform
Complexity
Size/time
Potential
Notes
impact
Sexual crimes
1. Application of the law Legislative change to ensure consent does not Low/Moderate Small
High
- consultation with legal
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and the
may can cause further
apply when the victim is a child or young
profession required
concept of
harm to children and
person
- high public interest
consent
young people
- broad agreement
2. The current
Legislative change to create a clear definition
High
Large
High
- public consultation
characterisation of
of consent – by specifying what it is and,
required
consent in the law can
potentially, clarifying what circumstances do
- high public interest
lead to unjust outcomes not amount to consent
- differing views
Out of scope
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Sexual crimes and the concept of consent
“As we further explored what is included in our current consent law, we found that the
negative construction…made it difficult for survivors to see themselves and their
experiences represented in the law…Our research and discussions on this matter have left
us as young people with lack of trust in the law, as we do not feel it offers consistent and
positive understandings of consent. We do not believe that this law gives our communities
the tools and understanding to address and eliminate sexual violence.”
- Dear Em Leadership
INFORMATION  Team
Christian v R
2.
In the New Zealand case of Christian v R,7  the appellant ran a church in a small
town. The complainant’s mother became a member of the church. When the
complainant was aged between 13-14, she moved to live on the appellant’s property
in a separate building to the appellant. A few weeks later the appellant came into the
house where the complainant lived, removed her trousers, and had sexual
intercourse with her. She did not say anything to him at the time, as she was scared
and did not know what to say. However, she later said she did not consent and did
not know what the word consent meant.
3.
Over the next three years (1996-1999) the appellant continued to have sex with the
complainant – first while she lived on the property, and later after she moved into a
house bus with the appellant. The complainant said she did not consent to these
sexual encounters. The District Court judge directed the jury on all three elements of
sexual violation8  but instructed the jury that consent and reasonable belief in consent
7 Christian v R [2018] 1 NZLR 315
8 The three elements the District Court judge directed the jury to determine if the appellant was guilty of sexual
violation by rape were if:
a) the defendant penetrated the complainant’s vagina with his penis;
b) the complainant did not consent to the penetration; and
c) the defendant did not believe, on reasonable grounds, that the complainant consented to the
penetration.
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were not live issues. The jury convicted the appellant of all three counts of rape. The
matter was appealed and the issue before the Supreme Court was whether the
District Court judge ought to have directed the jury on consent, and reasonable belief
in consent.
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4.
The Supreme Court was asked to decide the significance of a complainant’s silence
and inactivity during (allegedly non-consensual) sex. The court considered whether
there was a prior sexual relationship between the parties. On that basis, the court
found even where the complainant’s conduct did not convey that she wanted
intercourse, the defendant could reasonably believe from the circumstances of the
sexual encounter – notably “relationship expectations” that may have developed over
time – that she was consenting. The Supreme Court held the first charge of rape gave
no rise to defence of consent, however the other two charges of rape for the
remainder of the three-year period were overturned.
5.
The court held that “something more” than passivity or silence is required to indicate
consent but left open what “something more” might be. The judgment leaves open a
risk that repeated sexual offending over time may be more difficult to successfully
prosecute if the complainant does not, or has stopped, protesting or resisting.
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New Zealand’s approach to sexual consent is out of step internationally
6.
In recent years, comparable jurisdictions like Australia, Canada, and the UK have
updated their  laws related to consent and sexual crimes. These jurisdictions  use
‘positive’ definitions of consent in the context of sexual offences; however, a range of
models exist for defining what consent means (and what it does not mean).
7.
In Australia, a positive definition of consent exists in statute across each state that
defines consent as free and voluntary agreement9 (excluding Tasmania and Victoria,
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in which consent is merely defined as free agreement10) alongside a list of non-
exhaustive circumstances where consent does not exist.
8.
New South Wales has  gone a step further towards an affirmative model,  where
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consent is defined as having to be present at the time of sexual activity and a person
may by words or conduct withdraw consent to a sexual activity before or during the
activity.11 Any such activity requires ongoing and mutual communication between the
persons participating. The NSW Attorney-General stated the new laws are “not just
about holding perpetrators to account, but changing social behaviour with clearer
rules of engagement to drive down the rate of sexual assaults.”
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9 See for example Section 61HI (1), Crimes Act 1900 (New South Wales); Section 348 (1), Criminal Code Act
1899 (Queensland)
10 Section 2A (1), Criminal Code Act 1924 (Tasmania); Section 36 (1) Crimes Act 1958 (Victoria)
11 Section 61HI (2), Crimes Act 1900 (New South Wales)
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9.
We consider New Zealand could draw upon examples of how consent has been
positively constructed across these comparable jurisdictions to inform any reform in
this area.
Out of scope
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Document 4
1982
Hon Kiri Allan, Minister of Justice
Further advice on strengthening legal protections for victims of FVSV
ACT
Date
12 December 2022
File reference
Action sought
Timeframe
Agree to one of the following approaches for how work on FVSV in  At your convenience.
the law wil  progress in the new year:
• Undertake public engagement across the four FVSV issues
(recommended)
OR
• Make policy decisions for a small FVSV Bil  this term
Contacts for telephone discussion (if required)
Telephone
INFORMATION  First
Name
Position
(work)
(a/h)
contact
Brendan Gage
General Manager, Criminal
s9(2)(a)

s9(2)(a)

Justice
Sally Wheeler
Policy Manager, Harm
s9(2)(a)

s9(2)(a)

Reduction and Public Safety
Corinne Mcilwrath  Policy Advisor, Harm
s9(2)(a)

Reduction and Public Safety
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Minister’s office to complete
Noted
Approved
Overtaken by events
Referred to:
THE
Seen
Withdrawn
Not seen by Minister
Minister’s office’s comments
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In-Confidence
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Purpose
1982
1.
This briefing  provides  further  advice on  policy  issues that impact victims of  family
violence and sexual violence (FVSV) Out of scope

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Executive summary
2.
This briefing focuses on
pol
Out of scop
icy issues that impact victims – two that are specific to
sexual violence, and two that relate to harassment in the context of family violence:
Out of scope
Out of scope
INFORMATION
Out of scope
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Background
11.
In August, officials provided you with the briefing Family violence and sexual violence
in the criminal law: summary of key issues and forward work. In a follow up meeting,
you asked for further advice on consent and sexual crimes against children and young
people, Out of scope

12.
On 25 November, you met with officials and directed us to include Out of scope

INFORMATION
13.
This briefing wil focus on these Out of scopeareas –
t
Out of scope hat are specific to sexual violence,
Out of scope
:
Out of scope
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Recommendations
72.
It’s recommended that you:
1.
Note  this  advice  focusses on
FV
Out of scope
SV issues in the law:
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Out of scope
Out of scope
INFORMATION
s9(2)(a)

OFFICIAL
Sally Wheeler
Policy Manager, Harm Reduction and Public Safety
APPROVED        SEEN         NOT AGREED

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Hon Kiri Allan
Minister of Justice
Date       /      /

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we would like to also take the opportunity to
consult on broader issues with consent, including:
•
ambiguity with the current, negative construction of consent
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•
the onus of proof for a reasonable belief of consent, and
•
the definition of consent.
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Document 5
Justice Centre  |   19 Aitken Street
DX SX10088  |   City
T 04 918 8800  |   [email address]
justice.govt.nz
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27 January 2023

ACT

s9(2)(a)

Petitions Committee
[email address]

Tēnā koe

s9(2)(a)

Invitation to submit on petition of
: consent law reform
s9(2)(a)
Thank you for your email of 18 November 2022 inviting the Ministry of Justice to provide a written
submission on the petition of
to reform consent law, given the Ministry’s responsibility in
s9(2)(a)
administering the Crimes Act 1961.
The Ministry has an active and ongoing interest in the effectiveness of the criminal law, particularly
with regard to sexual crimes. Sexual violation is one of the most serious crimes, and it is vital to
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ensure the legal response appropriately recognises and responds to this by holding perpetrators to
account and supporting victims.
The petition by
requests that the House of Representatives urge the Government to reform
s9(2)(a)
consent laws.
states
view that the current definition of consent does not reflect the
s9(2)(a)
s9(2)(a)
necessity for free and voluntary agreement at the time of the act. s9(2)(a)  calls for “clear, affirmative
consent laws to keep our youth safe.” We are also aware of calls from stakeholders and the general
public that the current legislation is not fit for purpose.
Sexual crimes in New Zealand are criminalised under sections 127 – 144 of the Crimes Act 1961.
Within this part of the Crimes Act, the primary offence is section 128B – sexual violation. This offence
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comes with a highest maximum penalty of 20 years’ imprisonment, and depends on a lack of consent
and lack of a reasonable belief of consent for the sexual activity.
Currently, the legislation sets out a non-exhaustive list of circumstances which do not amount to
consent, but it does not provide a clear definition of what consent is. In recent years, comparable
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jurisdictions like Canada and Australia have updated their laws to address concerns similar to those
raised by this petition.
In recent discussions with academic experts, specialist service-providers, victim-advocates, and legal
professionals, they raised with us that the current legislation is not fit for purpose. Experts in this area
have a range of promising ideas for law reform.
We do not have any further matters to raise with the committee at this time, and wish the Committee
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well in its consideration of this petition.

Yours sincerely
s9(2)(a)
Rajesh Chhana
Deputy Secretary Policy
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Purpose

1.
This briefing provides advice and seeks your decisions on policy matters to strengthen legal
protections  for  victims  of  family  violence  and  sexual  violence,  following  consultation  and
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ahead of the Bill’s introduction in August 2023.
Key messages
Out of scope
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6.
We seek several policy decisions from you (which you have delegated authority to make) in
order to issue drafting instructions.
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8.
We seek your decisions on the recommendations to this briefing by no later than 31 May.
This will allow us to issue drafting instructions on that day to PCO. If this timeline is not met,
it  may  affect  our  ability  to  meet  the  timelines  you  have  requested  to  allow  a  Bill  to  be
introduced before the election.
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Recommendations
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92.
It is recommended that you:
Out of scope
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Out of scope
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s9(2)(a)
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Rajesh Chhana
Deputy Secretary, Policy Group
APPROVED / SEEN / NOT AGREED
  ___________________________________
Hon Kiri Allan
Minister of Justice
Date:        /       /
Attachments:
Appendix 1: Draft letter to the Rules Committee Chair
Appendix 2: Legislation that applies to vexatious litigation in family proceedings
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