that there was insufficient evidence to proceed without the cooperation of the young
women, they decided that no further action was required. They therefore overlooked
the importance of holding the young men accountable for their behavior and
preventing its recurrence.
(Emphasis added)
142
The Police, themselves, have acknowledged that this is an area requiring further
policy development to guide Police practice.82
143
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”).
144
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.
145
There is no statutory definition of consent. The courts have held that it must be full,
voluntary, fee and informed83 and that a person must understand their situation and
be capable of making up their mind when they agreed to the sexual acts. 84 In
addition section 128 A states:85
146
A person does not consent to sexual activity just because he or she does not
protest or offer physical resistance to the activity.
A person does not consent to sexual activity if the activity occurs while he or she
is asleep or unconscious.
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.
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.
82
Ibid.
R v Isherwood CA182/04, 14 March 2005.
84
R v Adams CA70/05, 5 September 2005
85
Crimes Act 1962, s128A.
83
Page 40 of 93
Human Rights Commission submission to the Human Rights Committee in relation to New Zealand’s 6th periodic review under the ICCPR