New Zealand Human Rights Commission Submission to the CAT in relation to NZ’s 6th periodic review 83. The young men were alleged to have committed such offences as sexual violation by rape and unlawful sexual connection, attempted rape, and assault with intent to commit sexual violation. These offences are set out in the Crimes Act 1961 (“Crimes Act”). 84. Section 128 of the Crimes Act states that the offence of sexual violation is committed if it can be proven that the alleged victim does not consent to the connection, and that the alleged perpetrator does not have a reasonably held belief that he or she is consenting. 85. There is no statutory definition of consent. The courts have held that it must be full, voluntary, fee and informed46 and that a person must understand their situation and be capable of making up their mind when they agreed to the sexual acts.47 In addition section 128 A states:48 (1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity. (3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious. (4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity. 86. Under section 134 of the Crimes Act, everyone who has a sexual connection with, or does an indecent act on, a young person (under the age of 16 years) has committed an offence and is liable to a term of imprisonment. There is no consent requirement under section 134. 87. While acknowledging that it is uncommon for Police to prosecute a young person under section 134 as it is not considered to be in the public interest to do so, the IPCA found that there were a number of aggravating factors in these cases that should have prompted prosecution. In particular, the young women were between two and three 46 R v Isherwood CA182/04, 14 March 2005. R v Adams CA70/05, 5 September 2005 48 Crimes Act 1962, s128A. 47 34

Select target paragraph3