OPINION: “Redefining what consent looks like in the bedroom – why this matters”

By Anoushka Bloem, Barrister and Solicitor, Bloem Law.
Originally published by NZ Herald.

Parliament is about to rewrite one of the most intimate and consequential parts of our criminal law: the law of sexual consent.

National, Labour and the Greens all agree New Zealand’s consent laws should change. This is a rare moment of political consensus on criminal justice. But consensus should never be mistaken for certainty. When Parliament changes the Crimes Act, every word matters. A single phrase can reshape courtroom decisions, jury deliberations, and ultimately the lives of ordinary New Zealanders.

This is not a niche legal issue affecting only those who find themselves before the courts. It will apply to every sexually active adult in New Zealand whether they are 18 or 80, in a new relationship or have been married for decades. There is no opting out of a change to the Crimes Act.

Consent unquestionably matters. The real question is not whether we should take sexual violence seriously, we absolutely should. The question is whether the proposed reforms will produce fairer, clearer and more reliable outcomes in criminal trials.

Why many believe the law should change

The case for reform deserves to be taken seriously.

Sexual violence remains a significant issue in New Zealand. Ministry of Justice research points to roughly one in four adults reporting having experienced sexual assault in their lifetime, and advocates argue the law must better reflect how sexual offending happens. They argue that the law is built mainly around what consent isn’t, that New Zealand is lagging behind other countries and that the law change will ensure justice for victims. Those concerns deserve serious weight. Modern criminal law should recognise those realities.

What the law already requires

Many people are surprised to learn that New Zealand law does not positively define what consent is.

Instead, the Crimes Act identifies situations where consent does not exist. A person does not consent simply because they fail to protest or physically resist. There is also no consent where someone is asleep or unconscious, incapable of consenting because of alcohol or drugs, mistaken about who they are with, or subjected to threats, or coercion.

In a prosecution for sexual violation (such as rape), the Crown must prove two things beyond reasonable doubt: first, that there was no consent, and secondly, that the accused did not honestly and reasonably believe there was consent.

The focus is not simply whether consent existed. It is whether the accused’s conduct was criminal.

In practice, these cases are rarely straightforward. They often involve two people who knew each other, agree that sexual activity occurred, but fundamentally disagree about what was communicated and understood.

What is being proposed

Labour, through Camilla Belich, has introduced draft legislation requiring consent to each specific sexual act to be voluntarily expressed by words or conduct at the time.

National has announced it supports an affirmative consent model requiring a “yes” through words or actions, although the precise legislative wording has not yet been released.

That distinction matters. Political slogans are not legislation. Before Parliament rewrites one of our most serious criminal offences, New Zealanders deserve to see the actual words that will become law.

The proposal raises several important questions.

The first concerns the requirement that consent be affirmatively expressed through words or conduct. While verbal communication is often desirable, many healthy sexual relationships, particularly long-term ones, operate largely through mutual understanding, body language and context. Parliament must be careful not to draft legislation that unintentionally creates uncertainty around ordinary human behaviour.

Imagine a couple who have been together for twenty years. One partner initiates intimacy with a kiss, the other willingly reciprocates, and neither says a word. Most people would instinctively regard that as consensual. The challenge for legislators is ensuring the law clearly distinguishes genuinely criminal behaviour without creating uncertainty around everyday relationships.

The second issue is what “conduct” would demonstrate consent. The proposed wording provides little guidance. Courts would still have to decide what conduct is enough, the same exercise the existing law already demands, which asks them to weigh all the surrounding circumstances.

More significantly, the draft proposal would stop an accused person from arguing that they genuinely and reasonably believed there was consent if they failed to take reasonable steps to ascertain consent, or where there was no evidence of voluntary agreement expressed through words or conduct.

Critics argue this risks shifting the evidential burden onto an accused person by requiring them to explain what reasonable steps they took or what “evidence” supports their belief, usually well after the fact. Criminal trials have always rested on a fundamental constitutional principle: it is for the Crown to prove guilt beyond reasonable doubt. Any reform that potentially alters how that principle operates deserves particularly careful scrutiny.

Criminal law is not relationship guidance

There is an important distinction that risks being overlooked. Encouraging clearer communication between sexual partners is undoubtedly a worthwhile social objective. Good communication makes for healthier relationships. But criminal law serves a different purpose. Its role is not to prescribe ideal relationship behaviour. Its role is to determine the point at which conduct becomes criminal and imprisonment may follow. Those are fundamentally different objectives.

Supporting affirmative communication does not necessarily mean every proposed criminal offence is drafted with sufficient precision.

Why this matters

A conviction for sexual violation carries some of the gravest consequences in New Zealand’s criminal justice system. It almost invariably results in imprisonment, lifelong consequences for employment, professional registration, police vetting and international travel, and permanent social stigma. That is precisely why Parliament must get the legal test right. The concern is not whether sexual violence should be punished. It absolutely should.

The concern is whether changes to the law will actually improve the fairness and accuracy of criminal trials, particularly where cases often depend upon competing accounts of private events that occurred months or years earlier.

In my experience, the difficult cases are rarely about whether “no means no”. They are usually cases where two people agree sexual activity occurred but fundamentally disagree about what each understood at the time. Those cases are difficult not because the law lacks words, but because human interaction is inherently complex. Changing statutory wording cannot eliminate that complexity.

What overseas experience tells us

Sweden introduced an affirmative consent model in 2018.

Supporters cite increased convictions as evidence of success. Critics question whether the reforms have changed the underlying difficulty: courts must still work out what happened in private, largely on the strength of two conflicting accounts. The overseas experience is mixed. The lesson is not that affirmative consent laws either succeed or fail. Rather, it is that changing statutory language does not remove the central challenge facing every sexual offence trial: determining what happened when only two people were present. That remains the task of judges and juries.

A conversation worth having

This debate should not be reduced to a false choice between supporting victims and supporting fair trials. A justice system worthy of public confidence must do both.

Before Parliament changes the Crimes Act, New Zealanders should ask some straightforward questions.

What specific deficiency in the current law is this proposal designed to fix?

Will the proposed wording genuinely improve criminal trials, or simply restate existing expectations about communication?

Will it produce fairer outcomes, or merely different ones?

Are ordinary New Zealanders willing to change their sexual behaviour to comply with the law?

Most importantly, will the public have the opportunity to scrutinise the actual legislation, not simply campaign slogans, before it becomes law?

Parliament may ultimately conclude that New Zealand should adopt an affirmative consent model. If it does, that decision should be based on careful legal analysis rather than political agreement alone.

Criminal law should never be rewritten because a proposal sounds persuasive or enjoys cross-party support. It should be rewritten only when Parliament is satisfied that every word makes justice more accurate, more predictable and more fair.

That is a conversation every New Zealander has a stake in.