Goldsmith on consent laws

Paul Goldsmith announced:

A re-elected National Government will modernise sexual consent laws to specify there must always be a “yes,” rather than an absence of a “no,” National’s Justice spokesperson Paul Goldsmith says.

“National is focused on fixing the basics in law and order, and modernising our consent laws is an important part of that.

“Unlike other jurisdictions we normally compare ourselves with, New Zealand law does not define what consent is. Rather, the Crimes Act provides a non-exhaustive list of what consent is not.

“If re-elected, National will change the law to specify that consent must be actively given, meaning there must be a ‘yes’ rather than the absence of a ‘no.’ That ‘yes’ can be communicated by words or actions.

“The change would align the law with what we’ve been telling our kids for a long time: that you need positive consent before sex, each and every time, rather than presuming it.

“That means silence is not consent. A person who doesn’t say no has not said yes. And consent given once is not consent forever. A previous relationship, or a previous encounter, does not change that.

“This isn’t only about the courts, where explaining what consent is, not just what it isn’t, helps judges and juries. It also resets social expectations, so that sex is understood as something both people actively choose.

“Importantly, these changes will not shift the burden of proof in sexual cases. The prosecution will still need to prove beyond reasonable doubt that consent wasn’t given, and that the defendant didn’t believe on reasonable grounds that it was.

Having clearer consent laws is a good thing, and the importance of proof beyond reasonable doubt is noted.

Also important is that this does not say consent must be oral. It can be communicated by action.

I would want to see the actual proposed law change before being categorical about whether the benefits of this, outweigh the risks, such as making false allegations more likely to result in a conviction. Graeme Edgeler on X made the point that the law shouldn’t be written in a way where both parties who take part in sex can in theory be guilty of rape.

The principle is good, and any bill should be supported to select committee. Beyond that, would depend on the wording of the law change, and especially how it compares to other countries, and what their experiences have been.