Goff Phil: Crimes Amendment Bill (No 2) — Second Reading Instruction to Committee In Committee 
Goff Phil: Crimes Amendment Bill (No 2) — Second Reading Instruction to Committee In Committee 
[Volume:625;Page:20005] 
Hon PHIL GOFF (Minister of Justice) 
: 
 I move  
That the Crimes Amendment Bill (No 2) be now read a second time 
. The bill with amendments moved by the Law and Order Committee updates the sexual offence provisions of the Crimes Act. In particular it introduces the principle of gender neutrality; makes sexual connection rather than sexual intercourse the basis of most sexual offences; and improves the law’s protection of vulnerable groups from sexual exploitation. 
Ensuring that sex offences are expressed and applied in a gender-neutral manner meets the fundamental principle that everyone should be equal before the law. The one exception to gender neutrality in the redrafting of the law is the retention of the offence of rape as a category of sexual violation. Submissions to the bill were divided over that issue. In the absence of any consensus the majority on the committee has recommended continuation of the status quo whereby rape remains as a male on female offence and as a separate category of sexual violation. Both I and the committee however accept that all unlawful sexual connections have as serious a consequence for victims as rape as traditionally defined regardless of their gender or the gender of the offender. All such offences are subject to the same penalty under law and they should be treated by our courts as equally serious in terms of the sentences imposed. 
New section 98AA inserted by clause 6 is headed: “Dealing in people under 18 for sexual exploitation removal of body parts or engagement in forced labour”. That offence has been created to facilitate New Zealand’s compliance with the Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children Child Prostitution and Child Pornography. Amendments recommended by the committee further clarify what sexual exploitation means for the purposes of that provision so that the offence does not impact for example on artistic or cultural performances or on medical or health education and information matters. The amendments also provide a defence when the defendant can demonstrate a belief on reasonable grounds that the other party was over 18 years old. An amendment that the under-age person cannot be charged as a party to the offence ensures that the ability to prosecute older offenders is not compromised by persons under the age of 16 being exposed to criminal prosecution. That avoids those people being pressured by the risk of prosecution into not pursuing a complaint. 
Section 131 inserted by clause 7 deals with sexual conduct with a dependent family member. It is designed to provide protection for young persons from sexual abuse within the family and to promote the family as a sanctuary in which young people can grow up without being subjected to such abuse. That clause has been strengthened by not requiring the Crown to prove that the young person consented or that the defendant knew that the family member consented to the sexual conduct because of the defendant’s use of power or authority. The committee’s recommendation also clarifies the boundaries of the offence by qualifying the phrase “if they are living together in the same household;” to mean persons living in the same household as members of the family. Recommendations further require the person to have a responsibility for or a significant role in his or her care and upbringing. That will ensure that the offence cannot be applied for example to flatmates. 
In respect of sexual conduct with a young person aged under 16 the bill significantly toughens the law. The loophole protecting women against being charged with sexual offending against children is removed and women can now be liable to prosecution for predatory conduct. The penalty for sex with a young person aged 12 to 16 is significantly toughened with the maximum term of imprisonment increasing from 7 to 10 years. The current 12-month time limit within which a person having sex with an under-16-year-old can be prosecuted is repealed. 
The targets of those changes are those who behave in a predatory way towards those under the age of consent rather than teenagers of a similar age in a consenting relationship. No one believes that prison sentences are an appropriate response in the latter situation; in fact police as well as schools and parents have rarely sought to bring prosecutions when a sexual relationship is between two young people of a similar age. Many Western countries including Canada and states in Australia and the United States actually include a defence of similarity of age. However because of the intense politicisation surrounding this issue which wrongly portrayed that defence as lowering the age of consent that provision has now been removed from the bill. That avoids any misconstruing of that defence as condoning under-age sexual relationships. As prosecutions are not sought in those situations that should make little or no difference in practice. 
Better provision is made in the bill to protect persons whose mental health condition and/or physical or intellectual impairments may mean they are vulnerable to unwanted sexual advances. The current provisions are inadequate. They rely on an outdated definition of mental subnormality. They apply to certain types of sexual contact only and there is no allowance for consensual sexual relations with or between those persons. The difficulty was in finding a workable balance between the rights of persons with impairments to express themselves emotionally and physically and to make decisions about their lives and protecting persons who are likely to be vulnerable. The proposed offence is framed around the notion of exploiting a person’s vulnerability in order to engage in sexual activity. The aim is to focus on exploitative conduct so that the law does not catch situations where a person with these disabilities wishes to have a genuinely consensual sexual relationship with another person. The committee clarified that the Crown will be required to prove only that the accused had sexual connection with an impaired person by taking advantage of the impairment. The committee also agreed to expand “significant impairment” to include impairment to the victim’s capacity to understand the nature of sexual conduct. 
Finally in the Committee of the whole House I will be proposing by way of a Supplementary Order Paper a new offence dealing with what is termed as “sexual grooming” of any under-16-year-old. In particular I thank Marc Alexander of United Future who raised this issue with me and helped the Government in advancing the legislation. This offence will extend the protection of young people from sexual predators by covering situations where a person contacts and arranges to meet a child—for example over the Internet—with the intention of sexually abusing him or her. 
I commend this bill to the House.