Underneath the political squabbling, what would a change to consent laws actually mean?

Changing New Zealand’s consent laws would shift the focus to the presence of a ‘yes’ rather than the absence of a ‘no’.

There’s nothing like listening to politicians squabbling at a playground level – “It was mine, no, it was MINE” – to obscure the importance of a complex shift New Zealand’s laws around rape. But that’s exactly what happened last week after justice minister Paul Goldsmith, as if from thin air, made a campaign promise last Sunday that National would change consent laws to bring them in line with many other developed nations and common understandings of what it means to have sex when everyone involved wants it. “National will change the law to specify that consent must be actively given, meaning there must be a ‘yes’ rather than the absence of a ‘no’. That ‘yes’ can be communicated by words or actions,” he said. 

The National Party would get this done – if they’re re-elected. 

Before anyone had the chance to celebrate or really figure out what was going on, Labour party MP Camilla Belich came in over the top to cast Goldsmith’s announcement as disingenuous, saying National had ignored and rejected her attempt to introduce cross-party legislation on exactly this issue, and that they should do it now instead of post-election. 

Men have stolen ideas from women for time immemorial, so it is more than possible Goldsmith didn’t come up with this himself. But it’s also unlikely Belich dreamed it up on her own, either.

In fact, it appears thousands of people have been pushing for this law change over many years: there was a 12,000-strong petition started by young survivor Layba Zubair in 2023 and the ensuing justice select committee report calling on the government to re-examine consent laws; all the rape survivors and advocacy groups who have ever spoken out about what a raw deal they’ve had in court; long-standing MPs like Marama Davidson, and more recently, a group of lawyers and academics modelling what legislative change might look like.

Paul Goldsmith (Photo: RNZ / Samuel Rillstone)

Political point-scoring around rape law is gross, not to mention that both National and Labour could have done this at any point in the past two decades, which is when Canada changed its own legislation. Either way, Goldsmith has now pledged to do the necessary work to catch up the understanding of consent from the olden times “no means no” to a modern day “yes means yes”, and it is safe to assume that Labour also wants to do this.

Moving on. What does it mean? Definitions are important. In New Zealand law, consent has never been defined, which is mind-blowing, when you think about it. (“I’m going to rob your house. Oh, you didn’t want me to? Sorry, theft hasn’t been defined.”)

Instead, the legislation talks about what consent isn’t; things like being under the age of 16, drunk, unconscious, or otherwise mentally incapacitated or deceived are times when consent can’t legally be given.

In a rape or sexual assault trial, the burden is on the prosecution to prove that not only did the assault happen, but that the alleged perpetrator reasonably believed that the victim wasn’t consenting.

This has meant, historically, that defence lawyers can fling all kinds of rape myths into the gap where a definition of consent should be. She didn’t say no, she asked for it, and in a particularly egregious example from a case I will never forget covering, she should have closed her legs. (It might also go some way towards explaining why an estimated 90% of sexual assaults in New Zealand are not reported to police.)

The details around Goldsmith’s proposed law change are unclear. But advocates say changes should include defining consent as something that is freely and voluntarily given, along with re-defining what consent isn’t – so it has be obvious the person has said “yes” via actions or words, instead of the current law, where arguments are still centred around whether or not they said “no”.

Otago University law and gender specialist professor Anna High says victims have historically faced intense scrutiny in court as to their actions. This switches focus to the alleged perpetrator. “If we define consent as an attitude that is communicated in some way, it’s no longer acceptable for the defendant to say ‘I thought she was consenting because she didn’t say no’,” she said. “It changes the legal arguments that are available, and it changes what the prosecution can use as proof.”

High, who has drafted new legislation for report Addressing Sexual Violence in New Zealand, says the change also aligns with consent education. “At the moment it’s possible to think of consent as something that just happens inside your mind. Our courts say consent can be reluctant, but obviously we teach our young people that consent has to be enthusiastic.”

It means the law will, finally, be clear. “If you didn’t say or do anything to say yes then that’s a no, and this shouldn’t have happened to you.”

New legislation might help protect survivors of sexual violence, address victim-blaming, and shift outdated and misogynistic attitudes towards sexual violence. It could, at best, encourage more survivors to come forward, and prevent them from being retraumatised in the courtroom. It will bring the law in line with what we’re teaching our kids; to respect your partner, to find out what they like, and to go from there, together.

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