Proposals by the New Zealand National and New Zealand
Labour “Uniparty” to strengthen New Zealand’s sexual consent
laws by requiring an explicit “yes” rather than relying on
the absence of a “no” are likely to ignite a debate among
legal experts, who warn that while the reforms are
well-intentioned, they may carry significant unintended
consequences for the justice system.
The discussion
centres on replacing or strengthening the existing legal
framework with an affirmative consent model, often referred
to as “yes means yes.”
Supporters of such reform argue
that such reforms better protect sexual autonomy and
encourage clearer communication between
partners.
However, critics caution that changing the
law alone may not resolve the evidential challenges that
have long characterised sexual offence
prosecutions.
One of the principal concerns is that
most sexual assault cases occur in private, with no
independent witnesses and little physical evidence.
In
many cases, the court must determine which person’s account
is more credible.
Some legal commentators argue that
requiring proof of an affirmative “yes” may not eliminate
this challenge but change the question before the court from
“Was there consent?” to “Was affirmative consent
communicated?”
Another concern is legal
certainty.
Human relationships are complex, and
consent is often communicated through words, actions, body
language, and mutual participation rather than formal verbal
exchanges.
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Critics argue that legislation requiring
courts to determine what constitutes a legally sufficient
expression of consent could create uncertainty until higher
courts establish clear precedents.
There are also
concerns that a rigid interpretation of affirmative consent
laws could unintentionally criminalise behaviour that is
commonplace in healthy, respectful relationships.
Many
long-term couples do not verbally request or provide
permission before every intimate interaction, instead
relying on established communication and mutual
understanding.
While most affirmative consent laws
recognise that consent may be expressed through conduct as
well as words, opponents argue that the legal boundaries may
still become more difficult to define.
The reforms
could also place greater emphasis on what steps an accused
person took to establish consent.
Although the legal
burden of proof would remain firmly with the prosecution,
some criminal law scholars suggest that defendants may face
increased practical pressure during trial to explain how
they satisfied themselves that consent had been
given.
Police investigations and criminal trials may
also become more complex, requiring investigators to
establish not only whether consent existed but precisely how
it was communicated, whether it continued throughout the
encounter, and whether it was withdrawn at any
stage.
Legal analysts note that these concerns do not
necessarily mean affirmative consent laws should be rejected
outright.
Rather, they highlight the importance of
carefully balancing the protection of complainants with the
long-standing principles of criminal justice, including the
presumption of innocence, proof beyond a reasonable doubt,
and legal certainty.
Supporters of affirmative consent
laws argue that the reforms send a clear societal message
that sexual activity should only occur where there is
active, voluntary agreement.
They also maintain that
clearer expectations around communication may help prevent
sexual offending and better protect individual
autonomy.
Experience in overseas jurisdictions that
have introduced affirmative consent legislation suggests
that the reforms have generally influenced police practice,
judicial directions, and public education more than
conviction rates.
Whether such reforms ultimately
improve justice outcomes remains the subject of ongoing
legal and academic debate.
Such a policy reform has
occurred in Australia, and for some, with devastating
consequences.
Kevin Ibbs was convicted in 1987 of
failing to stop having sex with a woman 30 seconds after she
withdrew consent.
After a trial which received much
publicity, Mr Ibbs went to jail for six months.
After
the woman involved and Mr Ibbs’s former wife both
subsequently confessed to setting him up, Mr Ibbs was
acquitted.
However, Mr Ibbs lost his reputation, his
assets, and eventually committed suicide as a result of the
false allegations made against him.
As policymakers
continue to consider possible changes to New Zealand’s
sexual consent laws, legal experts say the challenge will be
to develop legislation that both protects victims of sexual
offending and preserves the fundamental safeguards upon
which the criminal justice system is
built.
