Crimes Amendment Bill (No 2)

, 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.

Mr Speaker, I start by saying that I have been in the House for most of the afternoon, and I have observed—and I am not wishing in any way to flatter you—your facility with the Standing Orders, and the way in which you have rapidly come to grips with the new Standing Orders and with, in particular, the recently published Speakers’ Rulings.

I wish to deal directly with the Crimes Amendment Bill (No 2), and to indicate that the National Party will support this bill going to the select committee. In saying that, National offers that support while conscious that there are very major changes proposed by this legislation. Criminal law is dramatically impacted by these new provisions, and the real possibility exists that much of our case law—the body of law that has been built up by judges—will be no longer applicable. In consequence, it may well be that the legislation has been drafted in a way that will expose loopholes, which will require prompt remedial action by any Government. So it is—and I am glad that the Associate Minister of Justice is here, because he may wish to make a comment on this particular issue—that National seeks an assurance from the Minister that if there are inconsistencies, if injustices in the way in which the legislation has been drafted are revealed, then remedial legislative action will be introduced and advanced without delay. We are in a circumstance where it seems likely that the life of the present Labour Government is moving to a close. National gives an assurance that if, when it enters office in 2005, there are gaps of the character and nature I have described, it will close those gaps forthwith. It is absolutely critical for the maintenance of a legal system—with all the imperfections that surround such man-made systems—that the law is certain, clear, and easy to apply.

This bill represents the first overall review of the provisions of the Crimes Act since 1961. That 1961 legislation was, in many respects, patterned without change on the earlier codification of the criminal law in 1908. That is why it is appropriate to say that the current structure and sex-based nature of Crimes Act offences are largely derived from events at the very beginning of the 1900s. Some offences can be committed only by a male, and some offences contemplate only a female victim.

The provisions relating to sexual crimes are not being altered in their entirety. The bill makes it clear that the thrust of the changes is related only to sections 127 to 138. I find that surprising, because there was an opportunity to completely redraft that part into modern language. A number of offences remain in old language. Those offences deal with things like indecent acts between a woman and a girl, indecencies with boys under 12, anal intercourse, bestiality, indecency with animals, and similar offences. It is a pity that the opportunity was not taken by the Parliamentary Counsel Office to revamp the whole part, so that we could have a set of offence-creating provisions that reflected current social mores and values.

I say with some sadness that I am hugely unimpressed with the general policy statement that forms part of the explanatory note of the bill. It is right to say that the explanatory note will disappear as soon as this legislation moves further steps in Parliament. When the law is finally passed, the explanatory note will generally not be available to anyone other than students and historians who are interested in the history of the passage of legislation. I mention that because the opening words of this document, and I am reading from the explanatory note of the bill, are these: “The overriding aim of criminal law in regard to sexual matters is to recognise and encourage respect for the sexual integrity and personal autonomy of all members of the community.”—so far, so good. But then the draftsman has written this: “The law can help to achieve this by”—and this is the very first item that is mentioned—“reinforcing that people are entitled to enjoy a fulfilling sexual life with other persons of their choice, irrespective of their sex:”. That is not what the criminal law is about. The criminal law is about setting up a legal system with codified crimes, and, in the present context, ensuring that persons who sexually abuse others are liable to prosecution and punishment according to their culpability.

I think it is a great shame that in an area like criminal law the drafters, presumably with Government assent, have chosen to embark on a path that reeks of political correctness. I have to say that in these black-letter law areas, this Government is particularly prone to error. We see, in its identifying the policy aim here, an element of that stain. We need only to look—and we touched on this in the debate on the bill that preceded this one—at legislation like the Prostitution Reform Act to see that the impacts of that legislation that we forecast are now coming true. When we look at the Judicial Matters Bill that is currently progressing its way through the House, and at the Supreme Court Act, we see in these black-letter law areas errors of judgement that are perpetuated by this Government. Why it is appropriate to say in legislation of this type that this is all about “reinforcing that people are entitled to enjoy a fulfilling sexual life with other persons of their choice, irrespective of their sex:” beggars belief. These sorts of statements should have no place in an explanatory note. They should not be the thrust of legislation that is concerned with crimes against morality and public welfare. So I am surprised and saddened that the Government still thinks that these sorts of approaches are appropriate.

I turn briefly to the new section 128A to discuss the difficult situation that emerges from it. It is headed: “Allowing or agreeing to sexual connection does not amount to consent in some circumstances”. It is an attempt, and a clumsy attempt, to codify the present criminal law. One of the subsections states: “A person does not consent to sexual connection if the connection occurs while he or she is asleep or unconscious.” These are difficult areas to codify. These issues are best left to the common sense of the judges, either sitting alone or advising a jury upon the particular circumstances of a case. Often criminal breaches of the law occur under the influence of alcohol; whether that influence is partial or total will be an issue to be decided in the particular circumstances of the activity. But this particular subsection is scripted in a way that, I believe, will not be productive of benefit to society. Also, section 128A(4) states: “A person does not consent to sexual connection if he or she submits to or acquiesces in sexual connection while so affected by alcohol or some other drug that he or she cannot consent …”. This whole aspect of informed consent in criminal law is difficult, and does not lend itself to codification of this type.

Those who hold out the merit of the bill can properly say that the bill will assist in developing a safer social environment for persons vulnerable to sex abuse, and will secure more just outcomes. That may be so, but it is important that the legislation be carefully worded and properly applied.

I will speak on just one aspect of this bill, and that is the area around drug rape, because I am the author of a member’s bill on drug rape. In contrast to Mr Worth, I think the wording in the bill is better than in my member’s bill, and I thank the Minister of Justice for including it in this bill.

There is a problem around consent, and I think Mr Worth would do well to look at some instances of case law made within recent months, and at some opinions given by judges in recent months. I believe that the Minister has been listening and has got it right. I welcome the inclusion of what is commonly referred to as drug rape. The areas of consent, as referred to in this bill, and the amendments that are being made to the Crimes Act, make it absolutely clear what consent means in this case. I suggest that the previous speaker looks at some recent case law in this regard. Once again, I thank the Minister for the inclusion of drug rape in this bill.

This is fairly straightforward legislation, and the preceding National Party speaker, Richard Worth, has touched on an interesting point in terms of section 128A in clause 7. It is always very dangerous to start interfering with well-established cases. If one looks at section 128A(4), which states that: “A person does not consent to sexual connection if he or she submits to or acquiesces in sexual connection while so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to sexual connection.”, one wonders whether, if they are both so affected by alcohol or some other drug, does that mean that neither of them could possibly be liable for an offence? If the male and the female are both under the influence, but the woman—as is usually the case—somehow through the drugged or drunken stupor, suddenly says “No, no, no.”, which is an established case today, but the man is so drunk that he does not know what is happening either, would section 128A(4) actually give him a defence? He could be so affected by alcohol or some other drug that he would not know what was happening, either. It will be a very interesting task for the select committee to consider that one.

The other point I was looking at was the comment in the explanatory note, which states: “The Bill proposes that the incest provisions should be extended not only to sexual connection (as noted above) but also to cover same sex relationships within the family unit.” I had a look at the incest provision in section 130 and I do not think it achieves that objective as it stands at the moment. It would need to be very clear, perhaps not in quite so clumsy a way as section 17 of the Care of Children Bill, because section 130 states only that: “(1) Sexual connection is incest if—(a) it is between 2 people whose relationship is that of parent and child, siblings, half-siblings, or grandparent and grandchild; and (b) the person charged knows of the relationship.” A better definition of “parent” is needed than that, because if there are two same-sex people living together, and one of them interferes with the other party’s child, the question is whether they are living in a relationship. What constitutes a relationship in this day and age? It just seems to me that if all there is in this bill regarding same-sex relationships, and what they are meant to be, is what is in the statement made by the Minister and the introductory notes in the bill, it is totally unsatisfactory. Section 130 needs a definition of “parent”, in the same way that section 131A defines family members, although for other purposes, which are not necessarily linked to section 130.

It surprises me that the Government can come up with a definition of “same sex” for bills like the Care of Children Bill or the family property legislation but seems to have great difficulty in coming up with a definition for it in terms of section 130. To me, section 130 does not make it clear that it applies to same sex. What a same-sex relationship is would become the whole question for a defence lawyer, and most defence lawyers would have no difficulty in getting their client acquitted on section 130—on the same-sex basis, as it is now. The person might still be guilty on other aspects of this legislation as it is drafted at the moment, but certainly not on incest charges—bearing in mind that the charge of incest now carries a term of imprisonment of 10 years, which is probably higher than the present term of imprisonment.

So there are a few things to be considered in this legislation when it goes to the select committee. Mr Cunliffe indicates that it will be going to the Law and Order Committee, in which case the bill might come back to the House in this parliamentary session. Those are some matters I draw to the attention of the Law and Order Committee as being possible deficiencies in the legislation. At this stage, New Zealand First supports the bill going to the select committee.

On behalf of the Green Party, I would like to welcome the introduction of the Crimes Amendment Bill (No 2) to the House tonight. It is almost always the case on matters of a sexual nature that the law in this area has failed abysmally to keep up with changes in society since 1961, when the current Crimes Act became law. For any of us who are old enough to have any memory at all of 1961, it does not take long to realise that New Zealand, and, indeed, global society, has been through massive changes in the intervening 40-plus years, and I congratulate the Government on having the courage to face up to the difficult issues involved in dragging our archaic laws around sexual crime into the 21st century.

This is not to say I believe that the bill is necessarily perfect. It deals with matters that are by their very nature sensitive and complex and that touch most of us at levels beyond our comfort zones. I hope all the groups and individuals who have experience and knowledge, and who care passionately about the issues raised in this bill, will make the most of the opportunity to present submissions, and that I might have a chance to hear them during the select committee process. I realise that a number of such groups were consulted in the preparation of the bill, but it will still be absolutely critical for those who will be considering it to have the benefit of detailed comment. For example, even the Government’s explanatory note to the bill remarks on the difficulty of deciding whether rape as a male-on-female offence should be retained as a separate category of sexual violation.

It comments: “Public opinion will be sought on this issue.” This is unusually frank in my experience of such explanatory notes, and I think it marks a welcome recognition of the delicacy and depth of what is being confronted here. The nature, significance, and semantics of rape are loaded issues that have been debated for at least a generation of feminists and others, and the reluctance of the drafters of this law to rush in too quickly where angels fear to tread is instructive and to be commended.

To turn to some of the major aspects of this bill, as the Green Party spokesperson on disability issues I would like first to comment on that part of it that deals with section 138 of the Crimes Act. It is unsavoury and anomalous that until now it has been an offence for men to have, or attempt to have, sex with what is classified as a severely subnormal woman or girl. This has totally denied any concept that women with severe intellectual or other impairments might actually have the possibility of enjoying a legal sex life of their own—a fairly fundamental abrogation of one of the most basic of human rights. In recent years groups like IHC have done a tremendous amount of good work in the whole area of sex, sexuality, and intellectual disability, and it is great to see such work finally culminating not only in change within their own organisation but also in legislative change that will mean that everyone has a right, finally, to sexual autonomy. At the same time, the bill does not ignore the reality that people with significant physical, mental, or intellectual impairments do remain particularly vulnerable, and there are clauses that deal with this.

Secondly, the Green Party welcomes the inclusion of the substance of Dianne Yates’ member’s bill on drug rape into this Government legislation. Drug rape is actually nothing new, but it is way past time it was recognised by law. This bill makes it clear that it is an offence to have non-consenting sexual connection with someone who is asleep or unconscious, or who is so affected by alcohol or other drugs that he or she no longer has the ability to either consent to or refuse sex.

I believe that women, and some men, have actually suffered from this form of rape for uncountable generations, whether through the administration of alcohol or drugs or some combination of those, or for other reasons. Many women and men alive now, and possibly even some here in this Parliament, have been subject to this kind of rape, and have been left with a legacy of guilt, confusion, and self-blame for something that was actually a crime committed against them. I look forward to the day our Parliament passes a law that clearly states that non-consenting and/or unconscious sex is rape, and while for many it will be too late to help them inside the court or legal system, I hope we can at least look forward to a future in which we will live in a society that no longer is complicit in this particular crime.

Thirdly, we welcome the fact that, finally, the bill deals with gender and sexuality with neutrality. It is high time we were dragged out of the Dark Ages, when it was seen that only men could commit these kinds of sexual offences, and people pretended and acted as if women could not. We also welcome the additional measures that bring us into compliance with the optional protocol of the United Nations Convention on the Rights of the Child in relation to the sale of children, child prostitution, and child pornography. I particularly welcome in this regard the fact that these offences will apply to actions taken outside New Zealand, which is in line with the great work that ECPAT New Zealand has been doing in recent years. In conclusion, I simply reiterate our party’s support for the bill, and we look forward to working with other parties in this House on it and, in the near future, bringing forward a progressive and enlightened piece of legislation.

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.

I rise on behalf of United Future to contribute to the debate on the Crimes Amendment Bill (No 2). First of all, I want to deal with some of the main points of the bill, before I talk about the areas that we have concerns about. The purpose of the bill is to update Part 7 of the Crimes Act with regard to sexual offences. The present law in that area is somewhat outdated. The last time it was reviewed was in 1985, and many of its provisions have been carried over from the original Act of 1908. Clearly, society’s expectations regarding sexual conduct and consent have moved on a little since then. This bill is the product of a review of the sexual offences area, and was consulted on widely, ranging from legal academic experts to those in the health sector who treat sex offence victims.

The bill addresses a number of key issues. Firstly, I will talk about the range of offences. Offences that currently relate to, and can only be committed by, sexual intercourse will be extended to include all forms of sexual connection. That standard reflects the current view that all forms of sexual activity that are not consented to are equally abhorrent, and that all offenders are equally culpable. We view that as a positive step forward.

Child sex offences are simplified, and the bill removes any doubt that consent might have been a possible defence in a case where the victim was under the age of 12. The current time limit of 12 months on prosecution for some offences involving victims aged between 12 and 16 will also be repealed. That is also positive. A new offence of familial sexual abuse will be created. It will cover a wide range of relationships—such as foster, adoption, marriage, and guardianship-type situations—and will cover all forms of sexual connection. It further protects those under the age of 20 from the abuse of a power relationship.

A revised offence will also cover sexual conduct with an intellectually impaired person when consent is induced by exploiting the person’s impairment. I share some of the previous speaker’s concerns with regard to just what an intellectual impairment is. That is not fully described in the bill.

With regard to the issue of drug rape, the new law will clarify explicitly, amongst the matters that do not constitute consent to sexual connection, that they include a person being too affected by drugs or alcohol to have the capacity to consent to sexual activity.

In other matters the penalty provisions remain essentially intact, with the exception that the penalty for sexual connection with a child under 16 years old will be increased from 7 to 10 years’ imprisonment.

One other effect of this proposed legislation that I think will be positive is that all sexual offence provisions are to be made gender-neutral. That removes the anomaly that the leader of United Future, Peter Dunne, brought to public attention last year. As recent cases have continued to highlight, an anomaly exists whereby older women, for example, do not commit an offence if they have a sexual relationship with a boy aged between 12 and 16 in the same way that they would if the genders were reversed. That is plainly ridiculous, and I am glad to see that it is finally being addressed.

I will move on to some areas of concern. I think the honourable member from National, Richard Worth, made a comment with regard to the explanatory note of the bill, which I will now quote from: “The law can help to achieve this by—reinforcing that people are entitled to enjoy a fulfilling sexual life with other persons of their choice, irrespective of their sex:”. I am not sure why that is in the explanatory note of the bill. I do not see what the point is in having that statement there. It is unnecessary and is, quite frankly, the stamping of an ideology by this Government that seems to be hell-bent on a commitment to ethical neutrality. I think that that is a critical mistake. Again, I say that although that statement will not be part of the bill at the end of the process, there is no point in that statement being there at all.

If we look at some of the other statements in the explanatory note of the bill, we see a number of things that are good, and some that are not so good. The bill aims to simplify and strengthen the current offences against children and to cover the full range of sexual offending. Now nobody can disagree with that. The bill goes on to state: “The penalty in regard to sexual conduct with young persons under 16 has been increased.” I think that is right and proper, and most people would welcome that. However, I have a huge problem with the next paragraph, which states: “It is, however, important to balance the need to protect children particularly from older men and at the same time to ensure that teenage sexual experimentation does not result in young people being involved in the criminal justice system.” I have no problem with that, but the next bit bothers me: “To balance these two conflicting requirements, the Bill introduces revised defence provisions in regard to sexual conduct with young persons under 16. There are no defence provisions relating to sexual offending against children under 12.”

I think it was said earlier in this debate that we are now to have two regimes for children, when there was only one previously that dealt with all children under the age of 16. There is now the creation of a gap between children who are under 12 and those who are between 12 and 16. That seems to me to weaken our supposed intolerance to what is ultimately child abuse, and that needs to be looked at. I hope that during the select committee process that issue will be looked into, and that the distinction between those two different age groups and those two different regimes that is implicit in this legislation will actually be addressed fully, because it is problematic.

The other issue that I have a huge problem with is this. There is a provision in the explanatory note that states: “The Bill creates a new offence, under new section 98AA of the principal Act, prohibiting dealing in children for the purpose of sexual exploitation ...”. Nobody can possibly disagree with that. But the ultimate irony is that the very Government that is proposing to support this legislation is the very Government that turned round and put through the Prostitution Reform Act, the very Act that is responsible for putting younger children out on the street in Christchurch—

💬 Hon David Cunliffe: It was a member’s bill!

But we all know that the Government squeezed the arm of every Labour member to vote in favour of it. It passed, after great consideration, by one abstention.

💬 Hon David Cunliffe: Speak for yourself!

There he goes again, squeaking and squawking like a parrot that has just had its bikini line waxed. Frankly, the simple fact of the matter is that on the one hand Labour is deliberately trying to allow children to be victimised out on the streets by a law that turns round and states it is OK to sell, exploit, and abuse children, and on the other hand it now wants to pass legislation that states that will be a crime. How does that make sense? It gives with one hand, and takes with the other. If the Government is really intent on creating a new offence that talks about the sexual exploitation of children and the abuse that is imposed on children, then it should go ahead and revisit the Prostitution Reform Act. Let the Government go ahead and revisit that legislation, bring it back into the House, and amend it, so that we do not on the one hand allow children to be legally offended against and abused, and on the other hand turn round with another law and try to take away that abuse. That makes absolutely no sense.

We will support this bill being referred through to the select committee because, for the most part, there are some very good aspects to it. But as I have indicated, we cannot possibly agree to support the bill all the way through Parliament until we see some major changes, particularly around the two areas that I am most concerned about. The first is the two different regimes with respect to the children’s ages—relating to those under 12, and to those between 12 and 16—and the second is the need for consistency in how we treat children who can be sexually exploited with regard to some of the other ideological rubbish that this Government is trying to shove down the throats of New Zealanders.

I am very pleased to speak to this bill on its first reading, and I certainly support its passage through to a select committee. This bill, of course, arises from the first full review of the sexual crimes part of the Crimes Act since that Act was passed in 1961. The aim of this bill is to more comprehensively modernise and strengthen the law on sexual crimes. This bill addresses the archaic attitudes that exist in the 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 their gender. Anomalies are to be replaced and the offence penalties are to be increased, to provide an updated and a more consistent approach to the law relating to sexual offending.

I commend the bill to the House, and I hope it has a safe passage through to the select committee.

That is the second speech tonight from Government members who have just read out what is written in the commentary on the bill.

💬 Georgina Beyer: That’s right!

At least the member is honest enough to admit it, which is good. She will certainly get a point, and she is a very good reader.

It seems to me that all we have been dealing with in this House over the last 4 or 5 hours is what I would call the issue of “filthy perverts”—people who molest the children who live with them, and all that sort of thing. Frankly, we should spend less time on those people and more time on the children and the people who are victims themselves of sexual abuse and abuse generally.

There are a few concerns that we in the National Party have with this bill, but we will certainly support it going through to the Law and Order Committee. We are very hopeful that the committee, which we have members on, will be able to sort out some of those issues.

For a start, this bill deals with, amongst other things, carnal knowledge. That is what we used to call it in the old days, and that is what we understand now as sexual connection with somebody under the age of 16. If this Government had any real concern about carnal knowledge then it would be doing something about going around maternity hospitals, particularly in my electorate and others, and having a look at the young mothers in those hospitals who are very much under the age of 16 years and 9 months. It would be looking at why girls of 10, 11, 12, 13, 14, and 15 years of age are having abortions or having children today—and I can tell members they have not had virgin births. We have a situation where there is a huge occurrence of carnal knowledge, and a bill that is supposed to help deal with it. It is already against the law, but this bill will go through and we will all feel so much happier at the end of the select committee process. Once the bill is passed into law, as no doubt it will be, we will think we have done our duty by the country, but nothing will actually happen to stop what is already happening.

One of the sections the Government has put forward—new section 131A inserted by clause 7—defines a family member. It says it all really. It states: “… one person is a family member in relation to another person—(a) if they are living together in the same household;”. That is the Government’s idea of a family member. Would that include a flatmate, or someone who happens to be staying over for a matter of 3 months or something? That is obviously what it does mean. It goes on to state: “(b) if—(i) one of them is a parent, step-parent, foster parent, guardian, sibling, half-sibling, step-sibling, uncle, or aunt of the other;”.

I, like many other people, have been utterly disgusted that every time there is some pervert, or someone who kills a little child and happens to be living with the mother of that child, that perverted person gets called a stepfather. It is an absolute disgrace. That person is not a stepfather. We should not define such people as stepfathers. They are people who prey on solo mothers, in particular, and their children. This bill will not do anything about that problem, because their having any sort of sexual relationship with that child is already an offence.

I ask whether these sorts of bills are really just to make us feel good and feel as though we are doing something. We hear: “Oh well, we’re going to set out this law”, but the reality is that if we are not going to enforce the law, police it, and have penalties dealt out, or if we are going to say consistently that it is a lifestyle choice and put in a framework that encourages that sort of irresponsibility and perversion, then, unfortunately, offences will continue to happen.

The previous speaker, the person from United Future, made some very good comments about the prostitution reform legislation. I will not go as far as he did and blame Tim Barnett for the problems of prostitution, because, certainly, I do not believe that Tim Barnett ever wanted to see children on the streets of Christchurch prostituting themselves. However, I will say that when we set up a law and say that it is OK and that things are fine, the reality is that we know the details of the law—most of us do, anyway, because most of us read it before we speak on it—and some other people also find out the details of the law, but 12-year-olds generally do not understand all the detail of the law, and 13-year-olds and 14-year-olds do not understand, either. In fact, most people do not. They have to work on the general feeling from the law. When we have politicians in positions of power, including the Prime Minister, saying it is OK for people to be pimping and using others as prostitutes, then it tends to set an example that it is OK to do all those other things.

One of the comments made tonight by our previous speaker, Richard Worth, was about the misuse of this sort of bill to put forward public policy objectives that reinforce the idea that people are entitled to enjoy a fulfilling sexual life with other persons of their choice, irrespective of their sex. That has absolutely nothing to do with the substance of this bill. It is yet another example of this Government saying to the Parliamentary Counsel Office: “Go forth and give us some law that sounds really woolly and that will make us all feel good, and we will send that one straight back—

💬 Dr Wayne Mapp: That comes from the Ministry of Women’s Affairs.

Yes, I am sure it did come from the Ministry of Women’s Affairs. It would be the only thing the ministry has done, as well. We have in this bill another example of it.

Not very long ago at the Justice and Electoral Committee, as people will have read in the Independent newspaper at the time, the Parliamentary Counsel Office made a plea to us, saying it was sick of being used to do politically correct stuff for the Government. It was sick of being told to muck up its drafting to try to please some people who might vote for the Government. That is not good enough. This bill is another example. We in the Opposition look at it and say: “What? Another piece of legislation where its intent is going to be lost in all the glossy detail.”

There is also another statement—another politically correct thing—in the bill. It states that the public might be ready to be told that rape is not rape any more. It will now be known as sexual connection. Why would we want to call it that? People understand what rape is. They do not need to have another term called sexual connection. Half of them will not know what we are talking about and will think it is something completely different from rape. Therefore, they will say it is OK to rape but it is not OK to have sexual connection. We have to keep things simple. If we do not keep the law simple, then we end up with people inadvertently breaking it or absolutely thinking that the law means something completely different.

I will deal with one final thing tonight—that is, the issue at the moment of the lack of policing in this area of sexual connection, rape, and under-age sex. In my electorate recently I heard—and it was from the police—of a 15-year-old prostitute being picked up with her client, who was aged about 50—

💬 Dr Lynda Scott: That’s disgusting.

Yes, the member is quite right; it is disgusting. This girl was prostituting herself at the rate of about $40 a time to pay off the $4,000 debt she owed to one of the local gangs for P. When I said to the police that I presumed they had arrested that pervert who was with her—I believe that it is very good to use a bit of judgment occasionally, since nobody in the Government seems to have much—they said no, they had not arrested him because there was no proof. For goodness’ sake! The police should have dragged him in, charged him, put him in the cells for the night, and allow the court to deal with the proof. The girl confessed to the police exactly what she had been doing. She, of course, had no responsibility, as Mr Franks would have noted, and the police took her home. Her mother said: “OK, that’s the end of it.”, and that was it. That happened after the prostitution reform legislation and after we had been told that children would no longer be prostituting themselves. In fact, that is happening every day, everywhere, and now the signal has gone out to the police: “Don’t even bother doing anything about it, because Parliament thinks it’s OK.”

Bill read a first time, and referred to the Law and Order Committee.