Crimes Amendment Bill (No 2)

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.

I seek leave that Government order of the day No. 12 be discharged and that the Crimes Amendment Bill (No 2) be referred back to the Law and Order Committee for further consideration.

The ASSISTANT SPEAKER (H V Ross Robertson): Leave has been sought. Is there any objection to that course of action being taken? There is.

The National Party opposes this bill. There has been insufficient public involvement in, and discussion of, many of the bill’s proposals. Major changes are being made to the rules around “sexual conduct”, with minimum public consultation. The bill provides significant changes affecting consent and sexual activity involving minors, family members, and people with particular disabilities. The National Party fears that because of this insufficient consideration the bill may lead to serious unintended consequences and risk disturbing settled case law and legal concepts, and believes this could have been avoided if the select committee had spent more time on the bill.

We are also concerned about the politically correct agenda that promotes part of this legislation. Official documents show that the Government’s advisers wanted to legalise brother-sister sexual relationships for those over 20.

💬 Opposition Members: Oh, no!

Official documents show that the Government’s advisers wanted to legalise brother-sister sexual relationships for those over 20, and they also suggested that this might mean that a pregnancy arising out of a brother-sister sexual relationship would no longer be grounds for a lawful abortion.

This is part of a politically correct agenda that has colonised the public service under the Labour Party. Fortunately, those proposals did not make it into the bill. I do not know why Mr Goff and the Government would allow such a proposal even to be considered. With Labour, anything goes. Ask Mr Tamihere! I ask the House whether it is prepared to have this legislation, which was not sufficiently considered by the select committee, go through the House knowing that the people who advise the Government wanted to legalise brother-sister sexual relationships for those over 20.

💬 Hon Phil Goff: Not in the bill. It was rejected.

Is the Parliament sufficiently confident to know that? It may not be in the bill, but why did Mr Goff approve the release of the discussion paper?

💬 Hon Phil Goff: Because it was an issue.

Oh, because it was an issue! The fact is that this Minister approved the release of a discussion paper showing that the Government’s advisers wanted to legalise brother-sister sexual relationships for those over 20, and he did not rule it out.

The National Party and the public forced this Minister to drop his controversial similar-age defence for under-age sexual activity, and this would have given a defence where there was consensual sexual activity between 12 to 15-year-olds. Officials advised the select committee on 19 March that this defence would have “effectively decriminalised some under-age sexual conduct but is seen as the best option”. This proposal was opposed by mainstream families, the Law Society, Crown Law, the Chief Justice, and the Commissioner for Children. It was supported by Phil Goff, the Labour Cabinet, the AIDS Foundation, the Ministry of Social Development, and Te Puni Kōkiri.

The bill proposes penalties for sexual conduct with a dependent family member under the age of 18. The equivalent existing provision is, however, for the age of 20. The Government’s proposals mean that it will no longer be an offence for foster parents to have consensual sexual conduct with their 18-year-old foster child, for whom they have cared for many years. It would be more appropriate, in our view, to maintain the prohibition until age 20 to allow sufficient time to lapse and the dependant’s relationship to wane. The Government is passing “sexual grooming” amendments, which we support, but this provision grants an immunity to such groomers if they live with the victim. Most submitters wanted 20 years, but the Government dropped the age to 18 to be consistent with the—wait for it—Care of Children Bill. This clause could lead judges to a much wider—unintended—view of dependent family members when one considers the differing cultural perspectives on the role of the wider family in child rearing.

The commentary on the bill states that a person is a dependent family member of another person “if they are members of the same family, whanau or other culturally recognised family group … that has a responsibility for … his or her care or upbringing.” I think this could lead to some unintended consequences. In fact, officials themselves were confused. One described a whānau as: “people who live on a marae”. The bill proposes a far-reaching “reasonable belief” defence for sexual conduct for all people over 12. If a person believed that the other person was 16 or over, and that person had taken reasonable steps to obtain the age of the person, and the conduct was consensual, then a defence would apply. Currently, a similar provision exists only for an accused under 21. At present, a 45-year-old man has no defence in law for sexual conduct with a 15-year-old girl. Under the bill’s proposals he will have a defence in law, provided he reasonably believed she was 16 or older, and, for example, checked her—false—ID.

No committee consideration was given to alternatives for addressing the “genuine mistake” situation that the Government wanted to fix. Nor has there been sufficient discussion in the public about the merits or otherwise of the effect of this far-reaching proposal on protecting young people from predatory behaviour. In fact, official papers show that Ministers themselves did not even want to do this, until they were told it would be against the New Zealand Bill of Rights Act if they did not.

At present it is a crime to have sexual intercourse with a woman or girl who is “severely subnormal”. In seeking to modernise this provision the bill risks creating confusion and uncertainty through new and unproven wording. The Law Society, in particular, warned of a “forensic lottery” as judges are confronted with arcane evidence from opposed camps of experts attempting to argue concepts like “understanding the nature and consequence of sexual conduct”. We do not believe that the proposed amendments will do anything to remedy this. Indeed, officials advising the committee suggested leaving it to the courts to address the issue.

Whereas “consent” has a settled meaning in common law, the bill deems certain conduct as not amounting to consent. Concern was raised by submitters as to the lack of precision of some of these subclauses. For example, submissions noted that certain types of drugs associated with drug rape can lead to persons appearing completely in control and rational, and that they may consent to sex in situations where they would normally withhold consent. The definition of what is not consent risks causing more confusion than clarity.

The National Party opposes this bill. There are parts of it that we support, but we believe that the matters we have raised in our report are sufficient to say to Parliament that this bill should be referred back to the select committee. We heard earlier from Mr Tamihere that this Government is very good at changing one word to change the entire intent of a piece of legislation. We think that this bill should be referred back to the select committee. We do not think that Parliament should be rushing the passing of this legislation when we consider the politically correct agenda that is behind much of what has gone on in this paper. The Minister approved the release of a discussion paper that would decriminalise sexual activity between 12 and 16-year-olds and put it the bill. The Minister approved the release of a Government discussion paper that would have legalised some brother-sister sexual activity when those parties are over the age of 20. Fortunately, sound minds in Government departments and agencies across the country said that this was ridiculous, and even the Ministry of Justice wrote that it is not likely that this would be consistent with public opinion.

I have to tell the House that in no way is it what the public wants, and, fortunately, it was removed from the bill. But the fact is that the PC agenda that has colonised the public service under Labour is alive and well in this bill, and should be sufficient reason for this Parliament to send this bill back to the select committee to be sorted out.

I think that the previous speaker loves to latch on to anything that is lascivious in each little piece of legislation. He said that the matters he referred to were withdrawn from the bill—they were never in the bill. They were never in the draft bill and they were never in the final bill that went to the Law and Order Committee.

I have from time to time sat on the select committee, which gave long and careful consideration to some very delicate issues, about which there are some long and complex case studies. I particularly want to speak on the area of consent, because the Crimes Amendment Bill (No 2) has incorporated a member’s bill I had had before the House on the issue of drug rape.

I commend the select committee and the officials. My member’s bill was a short bill on consent, of basically one sentence. That has now been transferred into at least 2 pages in the bill, and defines the areas of consent. It states that people cannot consent to sexual activity if they are asleep, unconscious, or so affected by alcohol or drugs that they are unable to refuse or to give consent. It refers to those who are affected by an intellectual, mental, or physical condition, and it refers to mistaken identity. I will concede that it gives a much better definition of consent, and one that is more likely to guide the courts in the area of rape than the present law. Many and varied opinions were received on that.

One of the difficulties in many of these crimes is that they are witnessless crimes. Nobody is there to see what happens and to give evidence, and we rely on individual cases coming to court. We rely on the evidence of the victims and those who are before the courts. Those cases are very difficult and often about very delicate areas, and much case law has informed the select committee. Having sat on that committee at various times, I know that it agonised and worked backwards and forwards, over and over, in rewording and reworking to try to get the best decisions and the best wording that would stand up in court.

I commend the legislation to the House, but I am very, very wary of those people who want to make political points about other people’s misfortunes. What we have to ensure is the safety of New Zealanders of all ages, and that is the intention of this bill. It concentrates on the safety of young people and of people who might fall foul of others. So I commend the second reading of the bill to the House and look forward to its progress.

I rise to speak on behalf of New Zealand First on this bill. As my colleague Dail Jones has already said earlier today, New Zealand First has, on a number of occasions, reaffirmed the view that whilst in Opposition we seek to be responsible and support legislation that we think is good and, overall, to the betterment of the country’s well-being, and oppose legislation that we believe does not advantage New Zealanders at all.

This bill is a mix of both. Its overall intent is meritorious. It is probably appropriate to congratulate Dianne Yates, whom I have described before in this House as probably the luckiest MP in the place, given the number of members’ bills she has had drawn out of the ballot. I congratulate her on the work she did with her member’s bill, and on the part she played in seeing her legislation incorporated in the Crimes Amendment Bill (No 2), as her Crimes (Drug Rape) Amendment Bill was passed over. The issue she sought to deal with is one that New Zealanders are increasingly becoming worried about, concerned about, and angry about, particularly in this day and age when certain politicians in this House chose to lower the drinking age, and put more young women at risk in nightclubs and bars where the doping of drinks with party drugs regularly occurs. Such acts are carried out by despicable men who quite clearly do not have a social life and find that the only way they can actually get a relationship with a woman is to drug her into a state of unconsciousness, then take advantage of her. New Zealand First abhors that sort of behaviour, and would like to see these people reduced to what they actually are—and that is nothing more than pet food—and disposed of. But, of course, the only way we can do that is with this legislation, by ensuring that the penalties are there for the justice system to be able to deal with them. This bill reflects Dianne Yates’ concerns, and appropriately incorporates the necessary changes to the Crimes Act.

But this bill also stands as a testament to what John Tamihere said. Do members remember John Tamihere? He said that men’s problems are dealt with by the criminal justice system, and that women—and I will try to quote him as accurately as I can—“get a bloody Cartwright inquiry and millions of dollars thrown at their breasts and cervixes.” That was what he said, and the one thing that stands out in this bill is that the politically correct, feminist, sisterhood brigade that is alive and well—and which John Tamihere spoke of so vehemently and passionately—decided in the Labour caucus to keep rape as purely a crime that can be committed only against women. That is amazing, given the Labour members of the select committee who disagreed with that.

The Greens said that rape is a crime whether it be committed against a woman or a man. For every woman who can tell us how violated a woman feels by rape, it is just as possible to find a man—we need only visit some of our prisons—who feels precisely the same way about being violated. The Greens argued that rape should be defined as a crime against a man or a woman, New Zealand First argued the same point, United Future argued the same point, the Labour caucus members who were on the select committee agreed on the same point, and National agreed on it, yet they were overrun by the very women in the Labour caucus whom John Tamihere so aptly described.

That is an indictment, and is clear evidential proof of what John Tamihere was saying about his own colleagues. It is clear evidential proof of what John Tamihere said so publicly, so vehemently, and so forcefully to the nation about the women in his own caucus. They despise men. They hate men. They do not like men. They spend every day they are breathing, thinking of ways in which they can denigrate men and put them in their place. This is one little victory they have scored. Rape, by legal definition in this day and age, should be recognised as a crime that can be committed against a man or a woman.

💬 Judith Collins: Men can be victims.

Men can be victims, and it would be nice if some of the women in the Labour caucus—I am meant to say “wimmin” to be politically correct in this day and age—would accept that, or come out of the closet and tell the country why they do not. It is sad.

At the select committee we worked closely together, struggling to come to terms with some of the very complex and detailed issues. The Hon Tony Ryall was quite correct when he said that this bill should have had more consultation. New Zealand First stated in its minority report: “Whilst the aim and intent of the bill is meritorious, New Zealand First believes that the vast majority of the concerns expressed in the minority views of National, the Greens, and United Future are valid and as such, New Zealand First is disappointed that the Government did not accept the need for wider community and legal consultation.” We cannot be fairer than that. We are saying here that the Government is trying to do the right thing. We are saying that it has recognised and identified some issues that must be dealt with. But what we are also saying here is that it is damn arrogant.

The Labour Government is arrogant because it believes it has all the answers to everything. Despite what it says out there on the hustings about being a broad church and being inclusive and committed to consultation, the one thing that this Government just did, not 10 or 15 minutes ago, was deny the opportunity to have this bill referred back to the select committee for further discussion. How can Helen Clark tell the nation that she is a believer in a broad church and wide community consultation while her Minister Phil Goff turns down and rejects such a proposal? How can Labour members say that they do respect men, they respect the views of men, they recognise crimes against men, and that John Tamihere is wrong, when they sit there and jealously hold on to one definition so that rape is a crime against women only? They ignore the fact that they have just passed legislation legalising same-sex marriages, and that within those same-sex marriages a situation may well be happening now, or have happened yesterday, or might happen tomorrow, where one homosexual man rapes his partner. But, of course, it is not rape, because Jill Pettis says that men cannot rape men.

💬 Jill Pettis: When did I say that? I have not opened my mouth.

The member is saying that by voting for it. She is saying that by what she said in her caucus. She is saying that by endorsing every one of the other Labour women who rejected the pleas of Mahara Okeroa and Georgina Beyer, who said that the definition should be broadened. The Labour women—

💬 Jill Pettis: Oh, you’re jealous of us.

Jealous of them! Well, that is one for the books, is it not? John Tamihere just about summed it all up.

There is one other area I will touch on. The Minister said that the bill takes into account a United Nations convention that seeks to provide protection against child exploitation and child prostitution. How rich is that, given that we have child prostitutes walking the streets in Christchurch? Ever since this Government decriminalised prostitution, it has not done one thing to get those child prostitutes off Manchester Street. There has not been one prosecution. Not one man has been convicted. A task force team has not been put together. This is a Government that talks about protecting children and stopping the exploitation of young women; that talks about preventing children from going into prostitution; that signs up to a United Nations protocol, enshrines it into this legislation, and expects to be applauded and patted on the back for it; yet turns a blind eye to the child prostitution that is going on in its own streets in Auckland, Christchurch, and Wellington. It has done nothing about that whatsoever. There is a word for that. We cannot use it in this House. It applies to so many of the things the Government has allowed to happen in this Chamber.

It is with regret that New Zealand First has to criticise the Government on these points. We will support the legislation by voting for it. We will seek amendments in the Committee stage, and we hope that the Government will be true to its word, that it will listen and work with other parties and recognise that it does not have a franchise on what is right and on intelligence.

The Green Party is pleased to see the Crimes Amendment Bill (No 2) back in the House today, and we will be supporting it through all its stages. It is the sort of legislation that deserves, and I hope will get, cross-party support right across the House, dealing as it does with some really sensitive but unavoidable issues around rape, incest, and other forms of sexual offending.

The genesis of the bill lay partly with Dianne Yates’ member’s bill on drug rape. I would like to acknowledge her, as others have done, for her role in helping to push her own Government further, not only to improve on her original bill and to extend it as needed but also to take the extra steps necessary to update the original 1961 Crimes Act for our 21st century mores and realities.

The Green Party also notes Minister Phil Goff’s very recently introduced Supplementary Order Paper, which creates the offence of sexual grooming as part of this bill. We will support that, as well, given that it has become such an inescapable and recognisable part of the pattern of behaviour of paedophile offenders.

Sadly, sexual violence and offending of all sorts continue to be a problem of significant proportions in our society. In its submission to the select committee, the Auckland Sexual Abuse Help Foundation suggested that research shows that up to one in four girls may have had an unwanted sexual experience before the age of 12, that one in seven boys may have had such an experience before the age of 16, and that around one in 16 women may be sexually assaulted each year. Just from my own experience of life, I am also aware that far more women, and for that matter, men, have been raped in some way than ever becomes known in either the public or private arena. Even though support services and police awareness are much better now than when I was young—thank goodness—I believe that the vast majority of victims still go unrecognised and unsupported, thus sustaining lifelong trauma.

The Auckland Sexual Abuse Help Foundation and other submitters noted the way in which reporting rates remain low. One international research project found that maybe one in 10 survivors makes a formal report, while a local project found only one in seven victims had ever reported sexual violence against him or her to an official body of any sort. It is clear that even now the cases that make it to the courts are still the very small tip of a very large iceberg.

At least in improving this legislation, as we are doing here today, I sincerely hope that we will be widening and strengthening the ability of the police to prosecute, and the courts to convict, on a broader range of sexual offending than currently applies. We still live in a society where all too many people, particularly men, think that date rape or taking advantage of people when they are drunk or under the influence of drugs, or because they have asked for it, so to speak, is still OK.

Unfortunately, we have even a number of adults who still think it is acceptable to have sexual relations with children—related to them or not. That is despite the societal and religious norms, shared by all of us, that abhor such behaviour. I am glad that this bill strengthens the laws against incest, the last great taboo. It remains a taboo partly because of the code of silence around it, but unfortunately it remains a living reality for all too many children and young people.

The existing Act is too narrowly focused. We support the widening of the crime of incest to become gender-neutral and to recognise that all children and young people need protection from exploitation from older family members who have power over them. The Greens certainly do not share National’s concerns over definitions of family in that respect. It is an extremely complex area, and I think the new bill does a good job of trying to modernise and to define more clearly the range of possible relationships involved.

Another area of the bill in which I have taken a particular interest is that which deals with sexual offending in relation to disabled people. I have totally supported Government moves to recognise the right and ability of people with impairments to make their own informed sexual choices, while at the same time recognising that they can be particularly vulnerable to exploitation and abuse.

I am glad that the majority of the select committee saw fit to agree with the CCS submission that the use of the word “severe”, in that part of the bill as originally drafted, was inappropriate. That kind of negative value judgment comes from an era in which service providers, and the families of people with intellectual disabilities in particular, felt that they had a right to control and determine every aspect of people’s sex lives. It is good that we are finally moving beyond that, and I congratulate organisations like People First, IHC, and CCS on the courageous steps they have taken in this area, including their influencing and informing the amendments we are making today.

However, despite the Green Party’s overall support for this legislation, there is one area where I, like other members in this House, think it has not gone far enough—that is, in relation to the definition of rape. In putting the bill forward, the Government stated that its purpose in making reforms in that area was to ensure that the law relating to sexual offences reflected changes in social attitudes, that the law should be streamlined as much as possible, and that offences provided for all victims of sexual abuse, regardless of their sex and the sex of the offender. Despite that, and despite a number of submissions on the matter, the old definition of rape has been retained in the bill. It is not gender-neutral in that it states only women can be raped, not men, and that women cannot rape. It does not accept that rape can happen through penetration with an object, and it does not accept that oral rape is rape. Those offences continue to be called unlawful sexual connection.

The Green Party believes that the old definition retained in this bill is outdated in terms of society’s perceptions of what constitutes rape. It does not respect how victims feel about the reality of what has happened to them, and it is also out of step with the latest definition used by the International Criminal Tribunal for the Former Yugoslavia. That definition itself was the result of a broad review of rape laws across many jurisdictions.

I will therefore move an amendment, which is available on the table now, in the Committee stage of the bill today. It is aimed at defining rape as acts on men as well as women, acts by women as well as men, and acts that include anal and oral penetration, and penetration with objects. Currently, rape is vaginal only.

I know that this is a viscerally difficult topic for us to talk about. Most of us do not find it easy to discuss these matters around the dinner table at home, much less in our caucus rooms or in a public arena like this House. However, given that the Government has given us the opportunity to update the rape laws, we should have the courage to deal with this issue and not to run away from it because it is too hard to talk about.

Some submitters found the strength inside themselves to talk to us at the select committee about these things. We should honour that and have the strength to deal with them properly ourselves, too. Male on male rape does happen, as does female on female, and female on male. Many people who have been raped with an object will say that, in fact, the experience of that is even worse than rape with a penis. The idea that oral rape is not rape is equally incomprehensible to me. People to whom that has not happened may not understand how it can happen, but I can assure them that it is a reality and that the impact is physically and psychologically profound.

From my own experience, and from talking with others who have had such experiences, I do not understand how rape can be graded and coded so that it applies only in the limited way defined in this legislation. I do not think it honours women, or our experience of rape, to keep rape as a man-on-woman offence only. It flies in the face of reality to say that only women can be raped, that only men rape, or that anal and oral penetration are not rape. It is time that people in society, even those who are lucky enough not to have gone through any of those experiences, matured to the point where it can be more broadly understood and accepted that rape is rape. That offence should not be divided or lessened by a legal definition that makes some forms of rape seem less serious than others.

I know there is some sympathy for our view from other MPs and parties in this House, including Mr Ron Mark in New Zealand First, and I hope they will support the amendment the Green Party is putting up today. I would love to see the Government supporting our amendment. I believe that many members of the Labour Party support it. Let us name rape for what it is—an act of power by one person over another, committed through an act of violence in all the various ways by which that act occurs—and turn our legal definition into one that accepts that reality rather than takes the easy route out by leaving things as they are.

I rise for the ACT party in the second reading debate on the Crimes Amendment Bill (No 2). This bill recasts quite a few of the definitions and provisions related to under-age sex offences. ACT was not represented on the Law and Order Committee, so we have to rely on the committee’s report for the description of things that the committee considered. We listened carefully to the introduction given by the Minister and to the Minister’s media statements. I am not sure whether this is one of those situations where the Minister has announced his policy three or four times before Parliament even saw it. It could well be. Certainly, “grooming” has been mentioned twice and still no words have been seen. I see that Marc Alexander has filled that gap, or does the Minister have a Supplementary Order Paper?—[Interruption] There is. I am glad to see that.

We will have a lot to say on specific words during the Committee stage, but in the second reading members should be taking an overview. My concern is that Parliament, in giving this the attention that it is, is wallowing in a form of insincerity. The effectiveness of the law really depends on what we do when the law is broken, not on how carefully and elegantly, or clumsily, it is defined, or on how much difficulty the odd offences at the margin—the ones out of the ordinary—give the courts. What will happen in the community and what the offenders take as the message that the community wants to send to them relates to how likely they are to be caught, how likely they are to be convicted when they are caught, how likely they are to get a serious sentence when convicted, how likely they are to have to serve that sentence, and whether anyone is enforcing the parole conditions at the end of the sentence. In other words there is a whole lot of parliamentary activity, yet the police are not even investigating some rapes. Hundreds of files are not being forwarded, because instead we are spending in this Parliament the time and money that the police need to look at the bad people.

We make a whole lot of pious statements in Parliament about our anxiety. We hear the Greens urging everyone to pass all these laws, knowing that the law is unlikely to be enforced. In a lot of family situations these laws will make absolutely no difference, because the police, quite rightly, are prioritising. They are saying, as any of us would, that as they cannot investigate everything they will go for the obvious, outrageous, stranger crimes. Some murky situation inside a family where the evidence will be awfully contested, and where even at the end of it the police will not be sure whether they are doing good or bad, has to go on the back burner. Members of Parliament are standing up, one after the other, and taking seriously a bill for which the Government by its actions is showing a real lack of concern. What matters is enforcement, penalties, and whether the law means what is says; what we do matters hardly at all.

During the Committee stage I want to hear Mr Goff explain why he has suddenly acquired such a concern about under-age sex when he pushed through, against the proposed amendments of the ACT party, prostitution legislation that increased the age of prohibition from 16 to 18 and then expressly prevented the police from enforcing it. He took out the power we had proposed for the police to be able to ask people’s ages. How can the police enforce a law concerning under-age sex when they are not allowed to ask the age of people involved in the offence?

💬 Ron Mark: They want it as a career option.

Mr Marks says that Labour wants it as a career option. Labour wants to be able to pass laws, make foaming speeches about how tough it is, and make sure that Labour and its mates are not affected when the offences occur.

Express amendments were proposed to that bill. The police brought forward their concerns about that legislation and their lack of ability to enforce it. We have since seen that their fears have been justified in spades. This bill was an opportunity to remedy it. In fact, this bill expressly refers to the Prostitution Reform Act and says—cutely—that it is being monitored and will be left for a bit more experience. We know what is likely to happen when a bill says something is an offence, but then expressly makes sure that the police cannot ask the obvious question about whether an offence is occurring.

This bill also shares something else with the Prostitution Reform Act. It shares provisions saying that someone involved in under-age sex cannot be charged in a number of those circumstances. In other words, it pretends that people are not responsible, and do not know the law, until they are 18. That is nonsense. I was glad to see that part of the National Party’s crime policy is to reduce the age of criminal responsibility to 12. I think that is New Zealand First’s policy, too—and ACT’s. If we get the sort of Government that this country deserves after the next election, there will be a very quick reduction. But there must be consistency. If we are treating children as being able to be responsible for their actions, they should also be responsible when they are deliberately involved in breaches of this kind of law. Yet here is the Government solemnly pretending to be tough on under-age sex, then it sticks in a provision that says that a party, right up to the age of 18, cannot be charged in connection with one of those offences.

What about cases in relation to the new formulation of defences that have been put in this legislation—where someone is misled, deliberately misled, and misled with complete calculation, as with false documentation? There is no charge available. That shows whether the Government is really serious. That shows that this law is essentially slogans. The provisions may be better than what we have now, which is why ACT is likely to vote for the bill, but they are only marginally better, and there is so much additional twaddle around them, and so many threats to longstanding principles, that it is a very close call. Indeed, I will be listening to the debate in the Committee stage to decide whether my personal vote can support some of these measures.

I was glad to see that Mr Tony Ryall’s participation on the Law and Order Committee meant that some notice was taken of the Law Society’s warning of a forensic lottery “as juries are confronted with arcane evidence from opposed camps of experts.”

The Justice and Electoral Committee, as Mr Goff will know, is wrestling at the moment with some very dodgy convictions based on “arcane evidence from opposed camps of experts.” A law change rushed through in 1989, again by a Labour Government, and again in response to a hysteria and in trying to look as if it were concerned about fending off well-merited suspicion about its real social agenda, put through section 23G of the Evidence Act to give those experts a weight that traditional law would never have given them.

This bill, according to the Law Society, will confront juries with “arcane evidence from opposed camps of experts.” Well, the theories about sexual conduct are as various, probably, as the types of sexual conduct. The theories in my lifetime about the nature of rape—whether it is a power relationship, an inherent sex drive, people’s bad behaviour because there is not enough punishment, or something everyone would do if he or she had a chance—are all just theories. Liberating the experts to determine the outcomes of trials is not the way our law should be going. Our law should be based on the observable evidence of acts. For example, by eliminating—and I am not sure whether it does eliminate; the Law Society may have said—the ability to take into account whether there was a protest or objection, we may well see a whole new category of unfair convictions, and when we do that, the law loses credibility. If people really want to undermine the horror that people feel about sexual offending and rape, the quickest way to do that is to create more convictions that people believe may be unfair or unreliable. That is a sure way to undermine the social consensus that is essential to the enforcement of the law.

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.

As the chairperson of the Law and Order Committee, I will take a reasonably short call. I take this opportunity to express my thanks to all the members of the select committee. I accept that such is the nature of our democracy here in the Chamber, that some robust views will be expressed in terms of the processes around the committee. In terms of the interaction with officials, the constructive comments, and the constructive observations, I thank all members of the committee. I particularly thank the officials, some of whom are present in the Chamber, for their excellent work and assistance to the committee and for their very tireless efforts in terms of doing their job in assisting the committee to draft what we obviously hope is good law.

I take this opportunity to single out three people in particular who have played a very constructive role. One is my good colleague the member of Parliament for Hamilton East, Dianne Yates. I thank her in terms of the initiatives she took on the issue of law reform in relation to drug rape, which this bill implements. I think that the expertise Dianne Yates has in that area has been considerable and profound. Thanks to her efforts, we will hopefully have better law in that area. I also take this opportunity to acknowledge the deputy chairperson of the Law and Order Committee, Marc Alexander—who is not always charitable when it comes to certain aspects of Government policy, and that is the nature of it—he is a very hard-working member of that committee and a hard-working MP.

I want to acknowledge Mr Alexander’s Supplementary Order Paper, which proposes a new offence—that of meeting a young person under the age of 16 in order to undertake an exercise of sexual grooming. As the Minister has said—and I certainly reiterate it—we thank him for pursuing that particular issue. As a result of, in part, the work that he has done, there is a new offence, and the provision in the bill will extend the protection of young people from sexual predators by covering situations where, for example, a person contacts and arranges to meet a child over the Internet with the intention of sexually abusing that young person. So I compliment Marc Alexander on his work on that issue.

Finally—[Interruption]. I say in response to that interjection that, as chair of the select committee, I will take at least 2 more minutes, maybe 3 or 4 minutes. I also praise Sue Bradford. I personally express appreciation to her for her very insightful and very deep understanding of the issues raised in this bill. I think that she made a tremendous contribution in the select committee. It was a privilege and a pleasure to work with her. I also want to praise the speech that she has just made in this House, which, I assure her, I listened to very, very closely, and I thank her for her insights.

People have raised the issue of whether this bill needs to be referred back to the select committee. I want to highlight very succinctly one of the many examples that show why we need to get this bill through—and maybe the bill is not 100 percent perfect, but it is 100 percent better than what we have. Under the current law, a woman is not committing an offence if she has a consensual sexual relationship with a boy under the age of 16, but, obviously, a man who has a sexual relationship with someone under the age of 16 does commit an offence. Clearly, that law is not gender-neutral. Even Ron Mark, in the light of his robust contribution, would be really keen to sort that anomaly out. That is just one example of the anomalies that this bill corrects.

I also take this opportunity to honour and praise those people who gave private submissions to the committee recounting their very painful personal circumstances. To sit in front of a group of people whom one does not know, takes amazing courage and perseverance, and those submitters’ courage assisted members of the committee to look into the eyes of victims and to gain an insight. For those of us who do not have experience in that area—which, by the grace of God, is our good fortune—in terms of dealing with and talking to victims, that certainly gave us some very, very valuable insights, and I thank those people for that. I look forward to participating during the Committee stage and the third reading debate. I look forward to the reasonably speedy passage of this bill.

I have been listening to all the speeches given on this bill this morning, and I have to say that they have been very considered and very sensible. But they have actually left me very confused as to why all those speakers, who have talked about the inadequacies of the bill, are in fact putting their principles to one side and voting for it. That is despite the fact that, although the bill contains some very good things, it has some very, very poorly addressed matters, as well.

When I listened to previous speeches, I thought there must have been a huge rush to get this legislation through. Then I found out that the bill came out of the select committee in October 2004. It is now April 2005, so the bill has been sitting around in the office of the Minister of Justice for the last 6 months, and he has done nothing. He has had 6 months to talk to each of the parties represented in this House about the very sensible changes that they have asked for—changes that he no doubt agrees with. So what has he been doing in that time?

What he has not been doing is listening to the very, very sensible suggestions made in the House today. This is why my colleague the Hon Tony Ryall asked the House this morning for leave to refer this bill back to the select committee in order to get that work done. Instead, we had Mr Gallagher say that the bill was better than the current law. Well, he has to say that, because he is only a man in the Labour Party, and he knows his place. He is putting his hands up in horror; I say to Mr Gallagher that I am sorry but I do not believe that all men are evil. I actually believe that there are a lot of really good, decent men, so Mr Gallagher is OK with me and I say good on him for standing up.

Of course, the ladies in the Labour Party are very staunch on protecting women, all right—until it is not in their best interests. Then what do they do? They roll over every time a good-looking bloke bats his eyelashes at them. They say: “Tickle my tummy, John.”, and he does.

There are a couple of reasons why the National Party will not just give in to that sort of behaviour. We will not support the bill in its current form, for various reasons, but we do say good on Dianne Yates for bringing the issue of drug rape into this arena. And I also say good on my colleague Simon Power, who, I need to tell Mr Alexander, back in 2001 was calling for that offence of the grooming of little children to be dealt with by the Minister of Justice. But in 2001 and 2002 that Minister of Justice completely dismissed that view. It was too politically correct—we could not have that!

There are a couple of reasons why National opposes the bill. One is that under this bill it will be all right for some bloke to sexually groom a foster child—a child who has been living in the foster parent’s home or who has had the foster parent living in his or her home—until that child is 18 when, miraculously, that child will be able to consent to a sexual relationship. So he may not be able to groom the child on the Internet, but by goodness he can groom the child in his own home or in the child’s home. He can do that, and that is OK for Mr Goff—as long as the kid is 18. If that child has been brought up to think of that person as either a father, or almost a father—his or her closest friend—that child will be in a very vulnerable position.

Some people are children in many ways at 18, and are very, very vulnerable. Many of us, thinking of all the 18-year-olds we have known and thinking back to the time when we were 18 ourselves, know just what a vulnerable time it is. An 18-year-old is often just as vulnerable as a 17-year-old, and sometimes just as vulnerable as a 16-year-old. We have pointed out to Mr Goff that those are problems, but he has just sat back for the last 6 months, done nothing about them, and said that he must know better.

But this is, of course, the same Minister who thought it would be OK to allow 12 to 16-year-olds to have what he called “consenting sex”, while ignoring the fact that under-16-year-olds cannot consent, because they do not have the legal capacity to do so. He thought that that provision would be OK. It was only the work of my colleague the Hon Tony Ryall and other members of this House that stopped that nonsense in its tracks.

One of the other reasons why we are opposing this bill concerns the “reasonable belief” provision. I am shocked to hear that Mr Alexander is going to agree to that sort of nonsense. I am shocked to hear that New Zealand First will support a bill that says a 45-year-old man can have sex with a 15-year-old prostitute who happens to be wandering around Hunters Corner, Papatoetoe, in George Hawkins’ electorate, and that he can in fact get away with it if he has a “reasonable belief” that she is 18, or even 16. Of course there will be “reasonable belief”, because, supposedly, under the Prostitution Reform Act she must be 18 or else she could not be a prostitute! So there will obviously be a reasonable cause of belief. Any lawyer could tell the House that—and I do. I understand that Mr Alexander thinks the prostitute will have an ID with her. Oh, come off it! The police cannot even ask for an ID of a girl who is prostituting herself on Hunters Corner in Mr George Hawkins’ electorate. What makes the member think that that 45-year-old will ask to see her ID?

I normally agree with Mr Ron Mark. Most of what he said today I agree with but I do not understand his statement that he is going to support the bill; Mr Mark must be far more generous than I am. He has pointed out that child prostitution is happening in Christchurch. Taking that on board, I went down the other week to Christchurch to talk to members of the Prostitutes Collective about child prostitution. What did they tell me? I say to Mr Alexander that they told me they had talked to Tim Barnett about my coming to visit; they had to get their orders from Mr Tim Barnett. They said to me they did not like the fact that we had made it public there was child prostitution, and the reason they gave was that it had brought more people into the area. The other thing they did not like about it was that it had really brought down the value of prostitution. Apparently, prostitution is not very good as a living in Christchurch now that there are so many young prostitutes on the streets—because of this hopeless Government’s attitude toward child prostitution and child abuse.

💬 Ron Mark: It’s a career option.

Of course it is a career option, as Mr Ron Mark says. It is a disgusting situation when we have 14, 15, and 13-year-olds wandering round the streets in places like Papatoetoe in George Hawkins’ electorate and prostituting themselves with 45 and 55-year-old men, yet we are being told that this bill means that those men will stop and ask for ID first. What a load of nonsense!

Sometimes in this House we have to say that a bill is mostly OK. But the Government has had a 6 months’ opportunity to fix this bill, and it has sat on its hands. The parties that are supporting the bill when they know they should not are weak. They have given in—they have forgotten all their principles, and all they are doing is rolling over because Mr Goff has asked them to. I just think they are hopeless, and they should not even bother to waste this House’s time by telling us anything.