Tackling sexual violence means changing our consent laws

Thursday, 4 December 2025

The level of sexual violence in New Zealand demands urgent attention, argues Jan Jordan. That includes rethinking our attitude to consent. (Stock image posed by models)

Jan Jordan is Emerita Professor of Criminology at Te Herenga Waka – Victoria University of Women.

OPINION: Introducing affirmative consent laws is a necessary step on the pathway to reducing sexual violence. It is a move that will open the door to renewed conversations and education campaigns about what consent means, encouraging schools to promote areas of understanding such as porn and media literacy.

It is a move we must make if we accept sexual violence demands our urgent attention.

For years we have condemned our high prevalence rates combined with extremely low rates of reporting, prosecution and conviction. We know that between a third and a quarter of all women in New Zealand experience it at least once in their lifetime, and we know virtually all offenders get away with it.

An important report released this week by the Helen Clark Foundation reveals the inadequacy of our current laws and practices. It addresses four specific areas of improvement aimed at reducing offending and increasing the possibility of justice for victims/survivors.

A common view of sexual consent is seen as a woman saying “no”, but the authors of a new report advocate taking that a step further, writes Jan Jordan.

One of the key areas identified involves our current consent legislation. The latter details a range of contexts that do not amount to consent, such as one party being too drunk or asleep, but effectively leaves it up to the victim to prove that they were not consenting. It is sufficient for the alleged offender to say it was “reasonable” to assume consent.

Sexual consent is viewed by many as simply involving a woman saying no. “Don’t drink too much, keep your legs closed and say no,” girls are told. The inference is that otherwise you have only yourself to blame.

Our courts reflect such thinking, requiring the complainant in rape cases to prove she was not consenting. We no longer demand that she show she was prepared to fight to the death to protect her honour but we do still require her to prove her innocence.

The authors propose replacing our existing laws to embrace affirmative consent, placing the responsibility on each person to actively seek consent from the other people involved in any kind of sexual act. Adopting an affirmative consent model shifts the responsibility for proving consent to the alleged perpetrator when a sexual assault complaint is made. He (and it is predominantly a he) must be able to show what evidence he used to determine that the other party was willing. Instead of the emphasis being on her cross-examination to ascertain how she displayed refusal or resistance, he is questioned about how he actively sought to ensure consent.

Brothers Danny and Roberto Jaz during the criminal proceedings against them arising from widespread complaints of sexual assaults at the Mama Hooch bar in Christchurch. (Composite image)

It's a model already well established in some jurisdictions, including Sweden and most Australian states, with campaigns in other countries pushing for its introduction, including Great Britain.

Spain’s affirmative consent law, widely referred to as the “Only yes means yes” law, was introduced in 2022 following the highly controversial “Wolf Pack” rape case. During a bull running festival in Pamplona, five men took an 18-year-old woman into a hotel lobby in the early hours of the morning and repeatedly raped her. Later they bragged about their macho exploits on a WhatsApp group, behaviour reminiscent of what the Jaz brothers did in New Zealand’s Mama Hooch case, and the RoastBusters earlier.

It was the male judges’ behaviour that later provoked angry demonstrations in Spain when they chose to interpret the woman’s immobility as a lack of resistance on her part. One judge believed she might be lying, his failure to recognise the impacts of trauma similar to the misinterpretations rife in the recent McSkimming case.

Spain’s campaign to change consent laws sought to eliminate the requirement for victims to prove violence or threat and in removing the burden of proof from victims their new legislation reduces the scope for secondary victimisation. The latter occurs frequently in New Zealand courts when, as women often told me during my own research, rape victims felt they were treated like the guilty party standing trial.

To understand fully the significance of the foundation’s proposal, we need to appreciate how our current laws reflect patriarchal thinking that has no place in 2025. When the first laws on rape were passed, the victim was defined not as the woman but as the man who owned her. If he was her father, the latter deserved compensation since now his daughter’s worth had been devalued. If he was her husband, the offender had defiled another man’s wife. The impacts on the woman were irrelevant. She was property, lacking rights and identity.

We like to think we have moved on, even though many marriage ceremonies still involve the woman being “given away” by her father to her husband. We like to think things are different now, even though women are most at risk of being killed by their partners when they try to leave them. And we reassure ourselves that we live in a post-#MeToo age while raising boys to believe in their own sexual entitlement. Sadly, none of these are true.

Our laws reflect history and they also hold the potential to redefine it – but only if we can ensure everyone accepts that only yes means yes.

Jan Jordan has researched extensively the impacts of the patriarchal legacy for women and sexual violence, her publications including Tackling Rape Culture: Ending Patriarchy, and Snorkelling the Abyss: One woman, striving to survive, fighting for survivors.