Crimes Amendment Bill (No 2)

I will take just a quick call in the Committee stage to make a last-minute plea to the Government and other parties to support the Green Party amendment that I have put forward concerning the definition of rape. I have already spoken at length about this earlier today, but just to summarise briefly, my amendment seeks to make rape an offence that is gender-neutral, both in terms of offender and victim, and that includes oral and anal penetration and penetration with an object. The United Future amendment tries partially to achieve that, but it is limited because it omits any mention of an object and also confuses sexual connection with rape, which I do not think is useful. For those reasons, the Greens will not be voting for Mr Alexander’s Supplementary Order Paper, but I invite him to consider supporting ours, which is just that much more comprehensive and clear.

I am grateful to the Minister for taking a call just before the lunch break to explain why the Government will not support the Green Party position on the definition of rape. Mr Goff said that he had no fundamental opposition to what I am putting forward, and I really wonder whether any other members of his caucus do, in fact, oppose my amendment. I know that when we discussed this earlier in the Law and Order Committee, at least some Labour members were present who seemed to have every sympathy for the position I am putting forward, including Georgina Beyer, who alluded to that fact in her own speech earlier this afternoon. I have never understood why Labour subsequently took a different position, but it is still not too late to change. My amendment simply seeks to express Labour’s own avowed intention with the bill—to modernise and render gender-neutral the laws around rape and other sexual offences. I think Mr Goff said that the reason Labour could not and did not support my version of the definition of rape was that there was no consensus on that issue in the select committee.

💬 Hon Phil Goff: No consensus in here.

Or even in the House?

💬 Hon Phil Goff: Yes.

Although I am sure the Green Party would be delighted if Parliament, including select committees and the Committee of the whole House, suddenly ran on a totally consensual basis, that certainly has not been my experience of either select committees or this Parliament. It is actually quite strange for this Government to say, as the Minister appears to be doing, that all members from all parties have to agree on something before the Government can amend a bill. The Minister has been here a lot longer than I have, but I have certainly never been on a select committee or in the House when the Government has waited for full agreement on anything. We would certainly have a lot less legislation, and it would be a radical change in the way we do politics.

Mr Goff also said that the reason Labour could not vote for my amendment was that it was incomplete, because it did not refer to the use of objects.

💬 Hon Phil Goff: I’ve read it—you do. I acknowledge the member does.

I thank Mr Goff. I think that perhaps the Minister looked at the United Future Supplementary Order Paper rather than mine, because it is not mentioned in that Supplementary Order Paper. I am, therefore, still not able to identify from anything the Minister said any clear reason why Labour can not support my amendment. As I stated earlier, I think that this would be an opportunity for parties across the Chamber this afternoon to show maturity and a willingness to grapple with this difficult issue, which I know we all find hard to talk about, and to take the next step forward. The time has come when we should stop pussyfooting around and using euphemisms like “sexual violation” to cover over what is rape. After all—and this is at the heart of where I am coming from on this matter—I am coming from a victim’s perspective, in which there is no reason at all to differentiate between anal, vaginal, or oral rape, rape by penis or an object, or violation by a male or a female of a male or a female. The experience is one that only those of us who have been through it can understand, but there are many of us, and it is time for our voices to be heard.

I am looking at this part of the Crimes Amendment Bill (No 2) with very jaundiced eyes because I believe that most of what the Government is doing in this area is cynical vote-catching. I do not believe that this bill was driven by a very significant concern for the well-being of young people. I have already said the Government should be known by its actions, by what it actually does, not by the slogans it sticks into the law.

In this case, I want to focus on a relatively small section of this part—clause 6, which inserts new section 98AA. I think it says an awful lot about what is really being done. New section 98AA is headed “Dealing in people under 18 for sexual exploitation, removal of body parts, or engagement in forced labour”. I do not think that the people listening to this debate will believe what I am about to tell them about this provision, which states: “Every one is liable to imprisonment for a term not exceeding 14 years who—(b) engages a person under the age of 18 years in forced labour;”. So forced labour is fine, over the age of 18 years. Is that not slavery? What else is it? I quote further: “(d) detains, confines, imprisons, or carries away a person under the age of 18 years for the purpose of—(ii) the removal of body parts from the person;”. Each one of those actions, as far as I know, is an offence. Detaining someone, against his or her will presumably, confining them, imprisoning them, or carrying them away—

💬 Ron Mark: Kidnapping.

Kidnapping, exactly! In fact, this bill has a new definition of kidnapping, further on. But Mr Goff, for the sake of singing slogans to his masters in New York, is setting out another set of provisions to cover stuff, ostensibly only for people under 18 years, that our law already says is illegal for anyone. How can the Law and Order Committee have gone along with this nonsense? How can anyone justify a law that says specifically that we can detain, confine, imprison, or carry away a person if that person can prove he or she is over 18 years? I ask members to read new subsection (1A), inserted by clause 6, that was put in by the select committee, which states: “It is a defence to a charge under this section if the person charged proves that he or she believed on reasonable grounds that the person under the age of 18 years concerned was of or over the age of 18 years.” In other words, if we think a person is over 18 years, he or she can be detained, confined, imprisoned, or carried away for the purpose of removing body parts.

It is hard to believe, but that is what it comes to when we are so politically correct that we just take United Nations agreements, which are intended effectively for Third World countries where the rule of law has meant next to nothing, and stick them into our law. That is what this part is doing.

Section 98AA(1)(c), inserted by clause 6, goes on to state that it is an offence to permit a person under the age of 18 years to be engaged in forced labour. If the select committee was really doing its job it would have asked what it should do about chores. Is it not normal for parents to require their kids to do chores? The Government is busy putting in a defence that if it can be shown that the person is over the age of 18 years, he or she can be put into forced labour. That is wrong. No adult should be obliged to undertake forced labour. But here it is; the Government has just ruled out chores. It has simply stuffed into our law some covenant from a bunch of people on some United Nations committee, who have absolutely no respect for the freedom of the individual or the rule of law. I say to Mr Goff: “Have no fear; kids will learn about this.” Their teachers will tell them that they cannot be made to shine the family’s shoes or cannot be made to help dad at the garage—as I was. I spent many, many miserable hours selling petrol.

I move, That the question be now put.

I wish to turn to two issues. The first is the amendment in my name, which would essentially keep the law as it is now. I want to deal with Mr Goff’s arguments as to why he believes the law should be changed. He said the problem is that under the existing law a person who is over 21—maybe by a day, or by a week, or by 5 years—has no defences whatsoever and that therefore it is essential that defences be put into the bill for everyone.

Mr Goff neglected to mention the range of powers that the judiciary has. For instance, in the circumstances he described—for example, if one person is aged 21 years plus 1 day, and the other person is aged 15 years, 11 months, and 364 days—then I would not be at all surprised if in such a situation the court discharged without conviction. Judges have options. Alternatively, they could enter a conviction and discharge, so there is another option. It depends on the gravity of the crime. There is a whole range of options, including a whole range of sentencing options. Mr Goff would have the nation pretend that there is only one possible outcome—jail for 10 years. That is simply ludicrous. One would expect the Minister of Justice, who has been in the role now for some considerable time, to know a little more about how the judiciary functions.

The problem with the Government’s approach is that it has opened the doors to quite serious abuse. We specifically mentioned child prostitutes. They do exist in south Auckland, and in Christchurch, as I have heard from Mr Mark. The number has increased—and that is proven—as a result of the prostitution legislation. Those, typically, young women are hugely vulnerable to being preyed upon. That is the reality. They are preyed upon by older people. Mr Goff is putting in law a potential defence. Why would he do that? What was wrong with the old law? What was wrong with the level of judicial discretion that existed in reality? So I do urge that the amendment I have put forward in my name be adopted by those parties who are prepared to stand up for values. I will not be surprised if that does not include the Labour Party.

I also want to talk about another issue, and it is the inclusion of the word “whānau” in section 131A, inserted by clause 7. It has, no doubt, been put in because the Government wants to look like it sounds inclusive, and so forth. The trouble is that the criminal law is about certainty. I have heard from colleagues who sat on the Law and Order Committee that officials cannot define whānau—and, in fact, define it in the most broadest of possible terms; people who live on a marae—and that totally devalues our criminal law. Criminal law has to be certain because people suffer serious sanctions for breach thereof.

So I assume, in short, that the Government has put in the word “whānau” out of some misguided sense of political correctness, and in the process has damaged the criminal law of this country. The proof of that is the officials’ extraordinary definition—which could well be picked up by the judges—that simply makes a nonsense of the whole purpose and intent of our criminal law. There is no place for political correctness in criminal law. There is no place for some kind of misguided attempt to be inclusive in relation to the criminal law. Citizens have a right to know about certainty. This Government is taking it away.

I thank the Chair for allowing me to speak. I know there was an intention to close the debate at this point, but there are a couple of issues that I would like to address, and, particularly as I have a Supplementary Order Paper that addresses a couple of them, I am very grateful for the opportunity of talking.

My first point is that my Supplementary Order Paper deals with sexual grooming. I realise that it has now been overtaken by the Supplementary Order Paper from the Minister of Justice, and I am grateful that he has actually expanded on my initiative.

But the second aspect, which is really at the heart of what I want to talk a little bit about—and it has been touched on by a few other members—is the widening of the context of what can constitute rape, to I guess bring it up to date with what the public expectation actually is. It is regrettable that the definition of rape has not been expanded to include other forms of sexual assault—man on man, for example, or even woman on man, which has on occasion happened. I understand the Minister’s appreciation of the comments made by some of the members to this line, and I am just sorry he has not been able to find commonality or agreement with a number of members of the House who want to see this change happen.

It strikes me that anybody who has spent any time with victims of crimes such as—well, we would normally call them rape, but now we have to call certain crimes in that category “sexual connection”. It is not really the same thing. I admit that the penalties will be the same, and that is important, but, at the same time, to tell a man who has been sexually assaulted by another man that that is not actually rape is an affront. It somehow puts it at a lower level of offending than rape. One gets the sense that there will be conversations in prison where people say: “Well, at least it wasn’t rape.” Well, in the public domain it is rape, and that is the point, and the law needs to catch up to the fact that that is how the public sees it.

In one terrible case, which was alluded to during the select committee process, a woman had bottles put into her vagina, and then men jumped on top of her, cracking the glass. The kind of resultant damage to that woman, not only the physical damage but the mental scarring, is nothing short of rape. Even if the penalties are the same, it is absolutely despicable to call it anything less than rape. So, from that point of view, rape does have a stigma in our society, and we ought to be able to apply it to a wider range of offences than this law will currently allow. [Interruption] It will not lose that stigma.

💬 Stephen Franks: It does.

No; we need to widen it to capture other offences that are equally as abhorrent as the man on woman scenario. [Interruption] No, I do not believe that that is true at all, and if the member had spent any time with victims he would realise that.

I do appreciate the fact that the penalties will now be on a par with those for rape, because that will get rid of the gender inequity whereby a woman can literally rape a young child and get away with it, whereas a man raping the same child will not. That provision is to be commended.

I hope there will be some support for my Supplementary Order Paper, at least in terms of its widening the connotation of rape to include other than just male on female.

The question was put that the following amendment in the name of Sue Bradford to clause 7 be agreed to:

to omit from the heading to section 128 the words “Sexual violation defined”, and substitute the words “Rape defined”.