Calls for changes to New Zealand law after rapist claims sex with 12-year-old consensuaL

The interrogation of a victim who was accused in court of “consenting” to sex with an adult when she was 12 years old has placed New Zealand’s sexual assault laws in the spotlight, with advocates pushing for a total overhaul.

The offender, Tulisi Leiataua, was found guilty this week of 33 charges of sexual abuse against two girls. His youngest victim was 8 years old when the abuse began. Both victims faced two weeks of gruelling cross-examination, and it was the nature of Leiataua’s defence, rather than the trial’s final outcome, that prompted outcry among New Zealand advocates.

Leiataua argued during the trial that his assault on one of the girls, who was 12 at the time of the attacks, was “consensual”, that she had “pursued” him, and that it was therefore not rape.

His defence utilised an element of New Zealand’s laws not widely understood by the public – that while the age of consent is broadly 16 years in New Zealand, consent is still a legal defence available to those charged with sexual violation by rape. Advocates say that should change, to ensure that children cannot be regarded as consenting parties to sexual activity with adults.

“There definitely needs to be change,” said Kathryn McPhillips, executive director of sexual abuse organisation HELP. She said it was “immoral to be putting those ideas forward that a child could consent … It’s way out of sync with what the general population thinks our law is.”

McPhillips said being accused in court of lying and of consenting to sexual activity resulted in additional trauma for victims, particularly children. “As an adult, it’s bad enough to be blamed for something that was done to you, intentional harm that was done to you. That’s bad enough – but to be a child?”

“When an adult has done this to you, and then another adult accuses you of it in court … that is layer upon layer of being the world turned upside down, where the rights of all of these adults to hurt you are sanctioned by the state.”

Judge Richard Earwaker, who presided over the case, addressed the issue of consent on a person under 16 years old in the final days of the trial, the New Zealand Herald reported.

“Legally, a person under 16 cannot give consent for charges of indecent acts, therefore as a jury, all you need to decide is if the indecent acts took place,” he said. “But as for sexual intercourse, a person under 16 can give consent. You need to consider whether or not the consent was given based on the evidence you have.”

Defence lawyer Mark Edgar argued that the victim had engaged in a consensual relationship she now regretted.

“Has she detached herself from not remembering because she has regret? She was probably too young to appreciate it but that doesn’t mean she didn’t want to go along with it,” he said.

~ Via The Guardian