Clearing Up the Confusion Around Sexual Consent in New Zealand

Clearing Up the Confusion Around Sexual Consent in New Zealand
A general view of the coat of arms at the Supreme Court in Wellington, New Zealand, on June 12, 2019. (Hagen Hopkins/Getty Images)
Gabriël Moens

It was widely reported on Aug. 3 that a man in New Zealand accused of sexually abusing two girls, aged eight and 12, relied on a New Zealand law in his defence stating that a person under 16 can consent to sexual intercourse.

The accused, Tulisi Leiataua, denied the prosecution’s allegations of rape, indecent acts, and sexual violations, while arguing that the sexual relationship with the 12-year-old girl was consensual. He even claimed that, even after rejecting her advances, she continued to pursue him, and therefore, the sexual relationship could not be characterised as rape.

The judge, Richard Earwaker, said in his (rather confusing) instructions to the jury that “Legally, a person under 16 cannot give consent for charges of indecent acts, therefore as a jury, all you need to decide is if the indecent acts took place.”

“But as for sexual intercourse, a person under 16 can give consent. You need to consider whether or not the consent was given based on the evidence you have. Remember an adult cannot give consent to a minor, in fact, nobody can give consent for somebody else.”

Although the accused was convicted, the instructions of the judge created an uproar.

It raises important questions over how “consent” can be identified in these circumstances, especially with such a wide age gap between the minor and abuser—Leiataua was 20 years older than his victim.

A general view of the Supreme Court in Wellington, New Zealand, on June 12, 2019. (Hagen Hopkins/Getty Images)
A general view of the Supreme Court in Wellington, New Zealand, on June 12, 2019. (Hagen Hopkins/Getty Images)

Further, the instructions disclose a major flaw in the New Zealand legal system.

Indeed, if a person under 16 cannot consent to “indecent acts,” how is it possible that they can give consent to sexual intercourse which—considering the age of the minor—surely is an “indecent act?” Certainly any unwanted sexual act should be characterised as an “indecent act,” including sexual penetration or touching.

Put bluntly, the law around consent in New Zealand is confusing and unclear at best.

Reconciling the two conflicting instructions from the judge requires the best efforts of those well-versed in statutory interpretation. So, it is certainly worth a bit of time examining this area.

New Zealand Crimes Act

The Crimes Act 1961 (New Zealand) has a part that deals with sexual crimes.

According to Section 127, “There is no presumption of law that a person is incapable of sexual connection because of his or her age.”

This section is confusing because it naturally leads to a presumption that any person, regardless of age, can give consent. Further, it also assumes that any person can physically engage in sexual activity. However, such an interpretation disregards the fact that, for example, infants are clearly incapable of such acts.

The simplest interpretation of Section 127 is that people, regardless of their age, can consent to sexual connections.

Provided this is the right interpretation, this section should be repealed immediately so that those under 16 cannot give consent.

Minors Need to Be Protected

Kathryn Phillips, executive director of HELP Auckland, an organisation that provides support for sexual abuse survivors, called for the law to be amended urgently to ensure minors could not consent to a sexual relationship.

“Sexual behaviour between adults and children is always the responsibility of the adult, and children hold no blame for what is done to them,” she said. For her, the fact that children under 16 can legally consent to sexual conduct is troubling.

The New Zealand legislature could follow the example of Australia, where minors under the age of 16 cannot give consent to sexual relationships.

Although, in Australia, legal definitions of consent vary between state and territory jurisdictions, they all criminalise sex with minors. The Australian Law Reform Commission has recommended that: “Federal, state, and territory sexual offence provisions should include a statutory definition of consent based on the concept of free and voluntary agreement.”

“Consent” thus requires a free and voluntary act, untainted by force, fear, or intimidation.

According to Bianca Fileborn, a senior lecturer in criminology at the University of Melbourne, consent also needs to be actively communicated in order to establish a free agreement, known as “positive consent.”  Hence, “consent” cannot be implied from a minor’s inability to resist.

New Zealand’s current Justice Minister Kiri Allen is seeking advice on the issue of consent.

One can only hope that the advice she receives clearly and unequivocally recommended that minors under the age of 16 cannot give consent, either expressly or impliedly, to sexual intercourse. It is also hoped that there is the political will to implement such advice in a timely manner.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland, and served as pro vice-chancellor and dean at Murdoch University. In 2003, Moens was awarded the Australian Centenary Medal by the prime minister for services to education. He has taught extensively across Australia, Asia, Europe, and the United States.