Alexander Marc: Crimes Amendment Bill (No 2) — Second Reading Instruction to Committee In Committee 
Alexander Marc: Crimes Amendment Bill (No 2) — Second Reading Instruction to Committee In Committee 
[Volume:625;Page:20016] 
MARC ALEXANDER (United Future) 
: 
 I rise on behalf of United Future to address the debate on the Crimes Amendment Bill (No 2) with some preliminary remarks before I get to the substance of the bill. The bill deals with a lot of sexual offending rape and so on and I will talk about that a little later in relation to grooming legislation. It addresses paedophilia in a number of respects as well. It is clear that the rate of offending particularly for child molestation and paedophilia is grossly under-reported. We hear bandied about regularly that rehabilitation is so wonderfully successful for those individuals that the reoffending rates are comparatively low in relation to other crimes. But that is actually not true. A study has shown that reoffending rates for sex crimes particularly for paedophilia can rise as much as over 70 percent over a 22-year period. What that seems to suggest is that a lot of the people who commit those crimes are smart. They learn from their mistakes and they do not get caught again in a hurry. So anything we can do proactively is I think a positive move because it is such an insidious crime and leaves its mark for decades on the victims. 
There are positives in this bill. First of all we welcome the Government’s decision to drop the “similar age” defence even though there was a lot of hubbub about what it might have meant could have meant and so on. A bit of mischievousness played along with that and we are glad to see that that part of it has gone and we can concentrate on the main strengths of the bill. We also welcome the strengthening of the current section 134 of the Crimes Act so that not only sexual intercourse but also sexual connection and indecency engender mutual penalties. That provision will be captured in clause 7 which amends section 134. Penalties will significantly increase to 10 years. We hope however that the parole process will not undermine that intent—which is something that tends to happen all too frequently. 
An amendment to clause 7 in relation to new section 134A is to be welcomed also because false and fraudulent representation will be added to the grounds for negating defence. The lifting of the under-21 age limit for the “reasonable belief in age” defence is to be applauded. It makes no sense arbitrarily to restrict such an offence to a particular age subset when it can easily be argued that the practical ability to differentiate age may actually diminish with age rather than increase. The “reasonable belief in age” defence may sound waffly but when we consider that the test is whether a reasonable person took reasonable steps to determine the age of the young person where there are no exclusions based on alcohol consumption use of drugs or any other self-induced impediments then no more can reasonably be expected I think from anyone. 
We also welcome clause 6 which inserts new section 98AA. It inserts a number of new offences relating to the exploitation of persons under 18 for sexual purposes the removal of body parts and what I consider to be slavery provisions. However we recognise a number of difficulties with this bill. I will talk about some that have already been addressed. Although supporting the bill’s purpose and intent United Future considers a number of its provisions to be somewhat problematic. Most important the aim to modernise the law in support of a gender-neutral approach has not been totally achieved in respect of the sexual offence of rape. I note that the previous speaker from the Greens also mentioned that. 
Rape remains a discrete form of sexual violation which only a male is seemingly capable of committing against a female by penile penetration of the female genitalia. That option is not compatible with the overarching gender neutrality underpinning the bill and United Future’s own policy. Given that the bill does at least address gender equivalence in terms of penalties applied for comparable offences—and for that reason we will support it—it is regrettable that widening the definition of rape was not supported. I have a member’s bill to that effect and I hope that that will be supported around the House. 
United Future also takes exception to the definitions of “family member” in section 131A(1)(a)(iv) which provides for an offence of sexual conduct with those under 18 where consent is given because of use of power or authority. The terms considered in the section include “members of the same family whanau or other culturally recognised family group” with specific reference to the responsibility for or significant role in the care and upbringing of the victim. 
 There is neither in my opinion a clear definition of what is meant by “whanau” nor any ring fencing of what constitutes a “culturally recognised family group”. For example it is unclear whether flatmates boarders or others not living as dependent family members are specifically excluded from the parameters of the offence. Similarly an exchange student brought into a family as a family member where the host family is expected to provide and care for that young person as parents would almost certainly be covered. However a foreign student paying board may not be covered depending on the arrangement and understanding entered into. The bill remains unclear as to how to determine one but not the other and I would ask that the Minister actually address this matter when he has the opportunity later on. 
We consider that if our criminal justice system must apportion a sanction to reflect under this provision the degree of responsibility commensurate with recognition for the significant role in the care and upbringing of the victim then the barometer of that measure should at least be better defined. 
During the course of this bill’s progress through the Law and Order Committee I lamented what I considered to be an important omission in it which was provision to include sexual grooming as a specific offence. It was with that in mind that I drafted my Supplementary Order Paper 299 to amend the bill to include exactly such an offence. I am extremely pleased that the Minister of Justice has seen fit to pick up that initiative. I was invited to a series of consultations to help draft the initiative and I also went up to Auckland to meet some of the Minister’s advisers along with other interested parties. This has been brought about in a very constructive and collaborative manner. Of course my Supplementary Order Paper at least for that part has now been overtaken by the Minister’s Supplementary Order Paper 351 but I do not mind one bit. In fact I am pleased that the Minister has seen fit to raise the penalty from the 5 years’ imprisonment that I suggested to the 7 years’ imprisonment that he has put forward. I happily support that move. 
So I guess that my Supplementary Order Paper has served its purpose in the sense that it has been the architect of the grooming laws that we will debate later on. I applaud the Minister for picking up what I consider to have been a serious omission from the original bill. 
The fact of the matter is that paedophiles are incredibly underhanded. They weave a web of deceit building a trust with their intended victims and we should not have to wait until the body drops until we can go after those parasites. I am pleased to see that the grooming laws based on a United Future initiative that are being brought in by the Government will be one such measure to help the most vulnerable members of our society—our kids.