Cunliffe David: Crimes Amendment Bill (No 2) — First Reading 
Cunliffe David: Crimes Amendment Bill (No 2) — First Reading 
[Volume:615;Page:11472] 
Hon DAVID CUNLIFFE (Minister of State) 
 on behalf of the  
Minister of Justice 
: I move  
That the Crimes Amendment Bill (No 2) be now read a first time. 
 I intend to move that the bill be referred to the Law and Order Committee. 
This bill arises from the first full review of the sexual crimes part of the Crimes Act since that Act was passed in 1961. In 1985 amendments were made concerning only matters relating to the offence of sexual violation in the Crimes Act. The aim of this bill is to more comprehensively modernise and strengthen the law on sexual crimes. 
The Crimes Act currently preserves some offences that date back to 1908. These offences tend to presume that women are not capable of sexual offending. This bill will introduce gender-neutral provisions which ensure that sexual offence laws apply equally to all people under the law. Under current law women are not committing an offence if they have a consensual sexual relationship with a boy under the age of 16 but a man having a sexual relationship with someone under 16 does commit an offence. That is clearly a gap in the law. 
Several recent cases have highlighted how the assumption in the law that women do not commit such offences is simply incorrect. In one recent case the woman involved admitted publicly that she went ahead with a sexual relationship with a 13-year-old boy in part because she knew she would not be charged. Under the provisions of this bill women will also be able to be prosecuted under section 134 “Sexual conduct with young person under 16”. 
There is one major exception to the general application of the gender-neutral principle of this bill and that is with regard to rape. The current law specifies that a male rapes a female if he has non-consensual sexual intercourse with that female. It may be that the time has come when the public no longer believes it is necessary to use the term “rape” for one category of sexual violation and that sexual violation should simply be “unlawful sexual connection” regardless of the gender of the victim or offender. Others may however consider there is still a symbolic value in retaining rape a male against female offence as a separate category of sexual violation. Rather than amending the current sexual violation provision with regard to rape I would like to suggest that the select committee consider submissions from the public as to whether the provisions relating to rape should be retained. 
Offences that currently refer to sexual intercourse will now refer to sexual connection. Penalties for sexual offences have also been reviewed. For example the penalty for sexual connection with a person aged from 12 to 16 years will be increased to a maximum of 10 years’ jail. The maximum penalty for sexual connection with a child under 12 remains at 14 years’ jail. The bill simplifies and strengthens the current offences against children under 12 years and young persons under 16 years by restructuring the myriad of gender-specific offences in the current age categories. There is now just one offence for each age category. The two new offences cover all sexual conduct and are neutral on the gender of victims and offenders in both expression and application. The age ranges of the offences overlap to allow alternative charges to be laid in those few cases where there is uncertainty as to exactly how old the victim was when the offending took place. Time limits that exist for prosecuting some offences are repealed. 
The current law provides a defence to sexual conduct with someone under 16 if there was consent and if the accused was younger than the person with whom the act took place. This means that when two people under 16 have sex the older person commits an offence—but only if he is male—and the younger person cannot be charged. That is also an unjust approach. The bill proposes instead that it be a defence to the offence of sexual conduct with a young person under 16 if the accused can prove that he or she is of or under the age of the young person or is older than the young person by no more than 2 years and the young person consented. This defence is gender-neutral. 
A further defence to a charge is possible in circumstances where the accused can prove that the young person consented that he or she took reasonable steps to find out the age of the person concerned and that he or she believed the young person to be of or over the age of consent. These defences recognise that it is not desirable to criminalise young people for sexual experimentation despite how we as parents might feel about that activity. It is important to note however that there are no defence provisions relating to sexual offending against children under 12. 
The new legislation also provides a statutory basis for drug rape prosecutions by clarifying that there is no consent when a person has been drugged in order to remove his or her ability to give consent to sexual advances in those circumstances. This proposal stems from increasing concerns about drug rapes that have been reported over the past few years. The proposal represents a clear statutory statement of existing common law. Similarly the bill outlines other circumstances that do not amount to consent such as a person being asleep or unconscious or affected by an intellectual mental or physical condition or impairment that is so severe that he or she cannot consent to or refuse sexual connection. 
A new offence of familial sexual abuse covering all forms of sexual contact will be introduced to protect those under the age of 18 from abuse through a power relationship within a family. The offence covers a wide range of relationships including foster parents adoptive parents guardians and those related in law by marriage. An element of the offence requires the prosecution to prove that the accused knew that the young person consented because of the accused’s use of a power authority arising from their relationship. The current offence of incest has been extended to include sexual connection and to same-sex relationships within the nuclear family. 
An offence has been established to protect people who have significant impairment but who retain some capacity to make meaningful decisions about their personal lives. These people are vulnerable and at risk of exploitation by others. The offence focuses on predatory conduct only so that the law does not prevent a person with a mental health condition or an intellectual impairment from having a genuinely consensual sexual relationship. A key element of the offence is that the accused knows of the person’s condition and obtains consent by exploiting the person’s impairment. 
Passage of the bill will also make New Zealand compliant 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 by creating a new offence to prohibit the sale or exploitation of a child. The offence will be able to be enforced extraterritorially. 
Finally I note that while some offences have been restructured and/or extended the current section 136 “Conspiracy to induce sexual intercourse” has been completely repealed. Under this provision it is an offence to induce a female to have sexual intercourse with a man who is not her husband. This formulation is no longer required as the general law relating to parties and conspiracies covers such conduct. 
This bill addresses the archaic attitudes that exist in the Crimes Act towards the possibility of sexual offending by women and reflects the principle that all persons should be treated equally before the law regardless of gender. Anomalies will be repealed and offence penalties increased to provide an updated and more consistent approach to the law relating to sexual offending. I commend this bill to the House.