how far should the law go?
Should sexual violence crimes be punished with the death penalty? Too far? Maybe perpetrators should just get a slap on the wrist, so they know better next time?
Currently, the criminal law sits somewhere in the middle. So is the law, in the eyes of the people, occupying the right seat at the table? Does it effectively protect society from sexual crimes, while serving appropriate punishments?
The Current Law
Until 1985 marital rape was not a criminal offence in New Zealand. Having non-consensual intercourse with your wife was legal. Evidently, our law hasn’t always achieved optimal efficiency or equality on the grounds of social policy.
So are our current criminal law provisions satisfactorily handling policy surrounding sexual violence? This is a difficult question and one that needs to be thoroughly explored before any legislative changes are made.
Sexual Crimes are set out in the Crimes Act 1961 from s 127 to s 144. These are fairly extensive provisions and cover various situations where criminality may arise. The maximum imprisonment term for anyone who commits sexual violation of 20 years, and there is a presumption that the person convicted must be sentenced to imprisonment unless, having regard to the particular circumstances, the court thinks that the person should not be sentenced to imprisonment. The maximum sentencing time has been increased throughout the years so as to reflect the changing societal attitudes towards sexual offending.
Section 128A covers circumstances where allowing sexual activity does not amount to consent. In 2005, s 128A’s scope was widened greatly to outline a variety of circumstances where consent would be denied, with the effect of protecting the victim to a greater extent. This provision makes it clear that the onus is very much on the perpetrator to make sure that consent is given before engaging in sexual activity. For example, sub (1) holds that just because a person does not protest or offer physical resistance to the activity does not mean they are consenting; i.e. there needs to be some evidence of positive consent, either by words or conduct, for there to be an argument of consent or reasonable belief in consent for the offender.
These provisions reflect the hardline policy initiatives behind sexual violence; 20 years imprisonment is a substantial sentence, and the presumption that the convicted must go to prison unless held otherwise is consequential. We also see the gradual amendments, regarding consent and maximum punishment, which Parliament periodically engages in when they believe the sexual violation provisions are not meeting the requirements demanded by society.
A perpetrator is convicted of a sexual violence crime. Now what? How does the law adequately balance interests and factors in deciding on a punishment?
R v AM is the guiding case when it comes to the sentencing for sexual violation: here, sentences are set out in overlapping “bands” which reflect the intrinsic seriousness of the offending, and then the sentence within that “band” can be adjusted up or down to reflect the personal circumstances of each case. There are two sets of bands, the first applying where the leading offence is rape, and the second set dealing with sexual violation involving other forms of unlawful sexual connection. Some of the common considerations include violence, the specific harm to the victim, scale of offending, breach of trust and degree of violation.
Judge’s determine the appropriate punishment for an offender. So how would we expect judges to weigh up mistaken consent? What happens if there is prior consensual sexual activity immediately before the offending? These questions have been examined, and for the most part answered in common law.
Despite principles and the rule of law, there would be nothing stopping Parliament from enacting new provisions that put even tougher penalties on sexual offenders, overturning the directions the judges have followed, if Parliament chose to do so.
So should they?
Over the years societal views on sexual behaviour have changed. The balance the criminal law needs to attain is one that meets societies views and expectations of protection from sexual crime, while still justifying the use of the state’s coercive power against the free and autonomous person.
The enactment of constitutional provisions has placed boundaries on criminal law, because now criminal conduct must be interpreted with reasonably upholding important freedoms of the individual.
For example, would we support the outlawing of certain license plates that arguably promote sexual violence, or do we value freedom of expression higher? A case in Canada recently visited this question which was based around a man’s number plate which read “GRABHER” (his last name). Is the freedom of speech more important than a suggestive number plate?
What about now the banning of video games that contain sexual violent acts that the player controls?
We are a variety of people and opinions, so to place blanket criminal sanctions on certain behaviour and reducing freedom needs to be done cautiously. “Freedom of expressions constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfillment.”
However, just because regulating something would be difficult should not be a good excuse for not doing anything.
Reforming sexual offences to more restrictive provisions could help reduce the level of crime. But a restriction must be directed to a pressing social need and be proportionate to that need. What then, is the best method for determining how to reform the law?
As philosopher Hermann Mannheim argued, we should engage in law reform proportional to the desires called for from our society, rather than make law around sexual violence and force society to fit within those definitions of what is acceptable or not. There is an interesting justification for the argument that if you hold someone’s sexual activities as abnormal, and treat them as serious crimes under law, it may make them profoundly anti-social and produce the mentality of an outlaw. The criminal law would not want to overstep into criminal thoughts and fantasies…so where is the line?
An over-criminalisation of sexual violation could produce harm, but on the other hand an under-criminalisation of sexual violation would not do enough to prevent the harm that is being done under the status quo.
When looking at the adequacy of the law, statistics can help identify specific problem areas. Three areas in particular are revealed when looking to New Zealand statistics.
- A disproportionate amount of sexual violation compared to men (about 24% of women, compared to 6% of men);
- Less than one in ten incidents of sexual violence are reported to the police, and;
- Only about 13% of incidents reported to the police result in a conviction. 
How do these statistics inspire a re-examination of the law?
Dealing with the first statistic, one might call for law reform that specifically targets men who commit sexual violation in order to reduce the amount of offending experienced by female victims. However, this raises issues regarding the rule of law, namely the avoidance of creating laws that only subject one class of people to criminal sanctions. Parliament could increase the maximum imprisonment length, like it has done in the past, so to create more general deterrence, but that isn’t specifically going to reduce the proportion of sexual violation experienced by women compared to men. A conclusion could be arrived at that the criminal law mightn’t be the best avenue for changing that statistic. Perhaps that statistics kryptonite can only be widespread societal change of attitude from men, in which the criminal law can only really reflect, rather than lead.
In regards to the second and third statistics, how could law reform help encourage people to report incidents, and convict more people who deserve to be convicted? Some of the factors for not reporting include fear/distrust of the legal system (26%), and also the mistaken belief that what happened to them does not constitute a crime (23%).
These figures are too high.
Fear and distrust of the legal system is something the law can help remedy. Enactments of provisions that make it easier for the victim (such as s 44 of the Evidence Act amendment) , are hopefully already assisting with this. Another great initiative addressing this issue is the pilot sexual violence courts that were employed in Auckland that specifically focused on easing the difficulties faced by sexual violence victims who bring their claim to court.
The mistaken belief that sexual violence is not a crime doesn’t necessarily require a change in law, but simply more education and awareness. Perhaps discussions need to center around what actions are actually recognised as criminally wrong so people know what the law will not tolerate, and in doing so will hopefully be inspired to engage with the law so to determine themselves the adequacy of the current law.
The relationship between criminal law and sexual violence is complex, to say the least. Upon closer examination, many issues arise: the balancing of constitutional rights and effective and equitable criminalisation, the varied attitudes that are invoked in people when discussing this particularly sensitive subject matter, and the real need to do something about sexual violence.
While the criminal law has the power to wire society, this power must be exercised cautiously and lawmakers don’t always get it right. At times such as these, social movements and the voice of the people can alert those in charge that the status quo is unsatisfactory.
 Crimes Act 1961.
 Section 128B.
 R v AM (CA 27/2009)  2 NZLR 1, at .
 Crimes Amendment Act 2005.
 A (SC 106/2015) v R  NZSC 31, at .
 Above n 6, at .
 Above n 6, at .
 Mistaken consent will not be a mitigating factor in sentencing if the belief was an unreasonable one. However, if the belief, although unreasonable, was genuine it may reduce culpability to an extent. Consensual sexual activity immediately prior to offending may diminish culpability, depending on the circumstances. See R v AM for a comprehensive discussion on this.
 George Fletcher Rethinking Criminal Law (Little, Brown & Co., Boston, 1978) at 1.
 Aly Thompson “Crown Report says ‘GRABHER’ licence plate ‘supports sexual violence against women’” CBC News (online ed, Nova Scotia, 1 February 2018).
 Vogt v Germany (1996) 21 EHRR 205, 234.
 Hermann Mannheim Criminal Justice and Social Reconstruction (Routledge, Great Britain, 1946) at 67.
 Evidence Act 2006, s 44.
 Sally Murphy “New court to hear sexual violence cases” Radio New Zealand (Online ed, Northland, 25 October 2016).