Franks Stephen: Crimes Amendment Bill (No 2) — First Reading 
Franks Stephen: Crimes Amendment Bill (No 2) — First Reading 
[Volume:615;Page:11478] 
STEPHEN FRANKS (ACT) 
: 
 It is a pity this bill does not have a label as bills so often do. Simply numbering all the amendments to the Crimes Act does not allow people to know what they are and there are so many of them that it is very unhelpful later on when one is trying to work out what’s what. If this one had a sincere label it might have included in its title “Crimes (Politically Correct Language) Amendment Bill (No 2)” because a good deal of what this bill does is to simply swap euphemisms that worked 15 years ago for euphemisms that might work for perhaps 5 or 10 years and will have to be swapped again if the same process happens. 
One of the areas the Green member Sue Bradford just mentioned deals with the current law for severely subnormal women. In an earlier variant the term used was “idiot women”. Each time a change has occurred in this area it has been a change in terminology with the conceptual foundation remaining as difficult as ever. This one is no different. To deal with that particular matter quickly I hope the Law and Order Committee which will be considering this bill looks past the politically correct changes to decide whether there is any advance in taking out a test that said to everyone quite clearly not to have sex with people who are so subnormal that they cannot live independently or guard themselves against serious exploitation or against common physical dangers. 
That is the existing law test. It is being replaced with a subjective test—a person with “significant impairment” that the partner takes advantage of. We do not know what “significant impairment” is. It does not have an objective test but I would say—as Mr Richard Worth said—that in the criminal law to go backwards from a form of certainty to a form of uncertainty for the sake of getting rid of a failed euphemism is a great shame. 
I turn to another area that I call “deep insincerity”. There is a word that this House should be using—it is time we looked again at  
Speakers’ Rulings— 
but the word I am permitted to use is “insincerity”. The explanatory note to the bill claims that the law’s coverage for vulnerable groups has been improved. When we look to see what these vulnerable groups are we see they are children under 12 children between 12 and 16 and young people between 16 and 18. 
I believe that the claim to have improved coverage is total tosh. Age limits are reasonably clear public folklore. The criminal law can only work when it has been embedded in people’s minds as folklore when—in other words—everyone has a sense of what it means. It can really only work when it is simple and clear. The clear simple knowledge at the moment is that “under 16” is wrong. About 9 years ago defences were introduced that had this funny kind of ageism in them—that if the age difference was not too great it was OK. Now it is seriously complicated. It is so complicated by the allowances for consent that I predict that we will find—just as we have with the law after the passage of the prostitution bill—that for children between 12 and 16 the folklore will become: “It’s probably all right if you’ve got enough excuses.” That is not an improvement to our criminal law. 
I mentioned the prostitution bill and the connection there because this bill is doing exactly what that bill did: pretending to be all about care and concern and improving protection for the vulnerable while doing the very opposite. If we were genuinely trying to have a criminal law that discouraged sex relationships amongst children we would treat children or young people as responsible for their own actions. This bill maintains and extends the prohibition on holding people responsible for their own actions. So it has a complete exemption for a young person who may for example—just as the young prostitutes are doing in Christchurch—have procured false age evidence or told outright lies or in other ways have secured the commission of the offence. 
When the select committee was looking at this same issue in the prostitution bill we had evidence from the police that they would not be able to enforce the age limits unless they were given powers to require proof of age or powers of entry or the requiring and the keeping of registers or some other practical way of finding out how old offenders or the partners of offenders were. The Labour-Green majority rejected anything practical because this was intended to be a smokescreen. What has happened in Christchurch was predicted. 
When the prostitution bill came back from that select committee the committee had already rejected ACT’s amendments which were designed to ensure that the law was more than mere lip service. If this bill comes back from the select committee without changes we will propose similar amendments to tell young people that if the law is going to mean what it says then it will treat them as sufficiently responsible to be accountable for their own complicity in breaking the law. Instead we have a complete exemption. 
Mr Tim Barnett who is in the House knows that his work on that select committee is responsible for those children being on the streets in Christchurch. Those children would have been able to be picked up by the police for an offence. They would have been within the power of the system to protect—if that select committee had not been so intent on making politically correct statements in the law instead of law that is effectively enforceable. This bill has more of them. 
I think we should have a quick look at the provisions around “sexual violation”—yet another change in language always trying to avoid the old and simple in case people really understand it. Under “sexual violation” we now have a statement that a person does not consent to sexual connection if the person acquiesces while so affected by alcohol or some other drug that he or she cannot consent or refuse to consent. What does “so affected” mean? We do not know. When it is essentially leaving it to the courts anyway why has the Government chosen to put a few slogans into law with words that are so vague they do not add to what we have? 
I want to have a look at the new gang exemptions. New section 131 inserted by clause 7 provides for 7 years’ imprisonment for sexual connection with a family member even with the family member’s consent. “That’s fine” one might say until one looks at the definition of “family”. This is the sort of definition of family that the Labour Government loves.“Family” is—”(a) if they are living together in the same household;”. So that means flatmates that means gang members and it could mean a whole group of young people who are living together—only because the State is paying them living-alone allowances and will not uphold their parents’ authority to keep them at home.  
This provision covers flatmates and “consent” is suddenly irrelevant from a 17-year-old if the connection arises out of a “use of a power or authority arising out of the relationship between them”. What does that mean? Is it a power to pay for dinners fur coats or diamonds? That is as old as time. Does that invalidate consent? Is it power as the person who has signed up to the lease with the landlord? No one knows. Is it power to kick a person out because the flat is an unhappy flat? We do not know what this power or authority relationship is. Is it simply a power arising out of normal sexual attractiveness? Section 131 of this bill is absolute nonsense.