The man's attempt to challenge his conviction and sentence for rape on the grounds his victim gave reluctant consent failed in the Supreme Court. Photo / Mark Mitchell
The man's attempt to challenge his conviction and sentence for rape on the grounds his victim gave reluctant consent failed in the Supreme Court. Photo / Mark Mitchell
WARNING: This story involves graphic details of rape and sexual assault and may be distressing.
A rapist’s attempt to use reluctant consent as a court defence to violating his partner in a hospital en suite days after she gave birth has again raised questions about New Zealand’s sexual assault legislation.
The offender, who can’t be named to protect the identity of his victim, was found guilty of three charges of rape, with one charge representing more than one offence.
Two of the charges were for sexual violation by unlawful sexual connection, and one charge of male assaults female, following a retrial in the District Court.
He was sentenced to 15 years and six months’ imprisonment on the lead sexual offences and a minimum period of imprisonment (MPI) of nine years, two months was imposed.
The convictions and sentence were both challenged in the Court of Appeal, but the case was thrown out.
The man then sought permission from the Supreme Court to appeal that decision.
Help Auckland executive director and clinical psychologist Kathryn McPhillips said “reluctant consent” wasn’t a defence and it was symptomatic of New Zealand’s failure to fully adopt an affirmative definition of consent.
“I think it shows how we need to bring the law as written in the Crimes Act into line with other jurisdictions ... where consent is defined as affirmative.”
In 2022, New South Wales introduced new affirmative consent laws where consent was given “freely and voluntarily” through words and actions, and could not be assumed.
While courts did require consent to be “freely given” for the law to be clear to everyone, McPhillips said an affirmative definition of what that meant needed to be precisely defined in the Crimes Act.
Help Auckland executive director and clinical psychologist Kathryn McPhillips said New Zealand's consent laws need a lot of work to end sexual violence.
In its ruling released last week, the Supreme Court detailed how the defendant and his victim had been in a relationship that lasted about two years and had a child together.
The victim’s evidence at trial, which was accepted by the jury, described the relationship as being characterised by verbal threats and other emotionally or psychologically controlling behaviour used by her partner to get his way, the Supreme Court decision said.
In the appeal against the man’s conviction, three potential grounds were advanced - the first addressed the nature and quality of consent.
The second challenged counter-intuitive evidence given by a clinical psychologist who gave general testimony about the nature of abusive relationships and the fact it was often difficult for victims to leave such partnerships.
Days after his partner had given birth to their child and while she was still in hospital, the man raped her in an en suite shower in the maternity ward.
“She had said no when he raised the subject of sex, but went with him to the shower anyway.”
Previously, he made sexual advances to his partner in the kitchen of their home but she rejected him, saying she was not interested.
However, they went into the bathroom, where he locked the door behind him and raped her.
Another incident occurred on mattresses in the lounge after the woman said she did not want sex.
A convicted rapist has failed to get approval from New Zealand's highest court to appeal his conviction and sentence for sexual offending and will remain in prison.
He argued the rapes in the home bathroom and hospital were examples of reluctant consent, as his partner initially refused to agree to sex before going with him to the bathrooms to have sex.
“The same response is made to the representative count, which it is argued follows a similar pattern of reluctant acceptance to avoid friction in the relationship,” the decision stated.
The man’s argument was rejected by the Supreme Court, which ruled the judge made no error directing the jury they must be satisfied the complainant’s consent had been given truly, freely, rationally and deemed whether the complainant wanted sex or not “highly relevant”.
The ruling said the difference between true but reluctant consent and mere submission without consent may warrant consideration in the future, but this case didn’t reach the threshold.
“As the Court of Appeal noted, the complainant’s evidence was that she had rejected [the man’s] advances on all three specific occasions.”
While the fundamental difference between being unable to refuse and reluctantly consenting was highlighted by the defendant, the court ruled it was not satisfied there was a risk of miscarriage on any of the proposed grounds against conviction or risk of miscarriage arising from the sentence imposed.
As a result, the application for leave to appeal against conviction and sentence was dismissed.
McPhillips was pleased with the court’s findings but said the country’s consent laws were in drastic need of change, including the “reasonable belief” defence.
She said if it were to be used as justification, then changes similar to those introduced in Canada where the defendant needed to detail how they formed their belief were required.
“We do not see sex crime law as effective, and seek an overview of the system to establish one which is safe for victims, effective in holding people to account and provides appropriate rehabilitation that is restorative.
“That is, the system focuses on the person who was hurt and looks for amends to be made to them.”
Other changes deemed necessary included the removal of prophylaxis, defined as a situation of non-consent, when sexual violation charges related to someone aged under 16 years eliminated the defence of consent, changes to the trial process so the judge led the questioning, and establishing treatment courts to break the cycle.
“We believe these changes would encourage more reporting, reduce the trauma that survivors face in the trial process, encourage more people who have caused harm to step up to take responsibility and to engage in treatment.
“All things necessary to end sexual violence in this country.”
