Calls for changes to New Zealand law after rapist alleges ‘consensual’ sex with 12-year-old

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

The offender, Tulisi Leiataua, was found guilty this week to 33 counts of sexual abuse against two girls. His youngest victim was 8 years old when the abuse began. Both victims faced two weeks of grueling interrogation, and it was the nature of Leiataua’s defence, rather than the final outcome of the trial, that sparked protests among New Zealand defenders.

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

His defense utilized an element of New Zealand law not widely understood by the public – that while the age of consent is largely 16 in New Zealand, consent is still a legal defense available to those accused of rape by rape. . Advocates say this must change, to ensure that children cannot be considered consenting parties to sexual activities with adults.

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

McPhillips said being charged in court with lying and 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 being a kid?”

“When an adult does this to you, and then another adult accuses you of it in court….”

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

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

Defense attorney Mark Edgar argued that the victim had been involved in a consensual relationship that he now regrets.

“She broke up not remembering because she regrets it? She was probably too young to appreciate it, but that doesn’t mean she didn’t want to go along with it,” he said.

Related: I was a child victim of domestic abuse – I know how much children like me need support | terri white

Leiataua was found guilty in Manukau District Court of four counts of rape for rape, three counts of indecent act with a juvenile, one count of indecent assault, 10 counts of rape for unlawful sexual connection, seven counts of other sexual violations, two counts of another assault against a child and six counts of indecent act against a child.

Layba Zubair, a 17-year-old advocate and activist, has launched a petition to parliament for a review of New Zealand’s consent laws, arguing that “the definition of consent in our current laws does not reflect the need for free and voluntary agreement at this time.” of the act”.

She said New Zealand legislation needed urgent review, and the country could consider affirmative consent laws like those introduced in New South Wales this year. “The fact that our consent laws don’t even have a definition for consent, and the fact that our laws don’t protect people under the age of 12, is just awful,” she said.

Zubair said she was shocked that lawyers would argue that a 12-year-old can give consent. “A lawyer is trying to do his job,” she said, “but the fact that the law allows them to use that argument and the fact that the law supports them… is disgusting.”

In 2021, a study commissioned by the Chief Victim Adviser – a formal role that provides independent advice to the justice minister – examined transcripts of child and adolescent interrogations from 15 sexual abuse trials. He found that the children were tormented, explicitly accused of lying, and asked if they enjoyed being abused. “It is clear that child witnesses need much more support and protection than they do now,” said the victim’s top adviser at the time, Kim McGregor.

Justice Minister Kiri Allen told Open Justice reporters that she had sought advice on consent laws.

  • Information and support for anyone affected by rape or sexual abuse issues is available from the following organizations. In the US, Rainn offers support by calling 800-656-4673. In the UK, Rape Crisis offers support on 0808 802 9999. In Australia, support is available on 1800Respect (1800 737 732). In New Zealand support is available on Safe to Talk – 0800 044 334 or free text 4334. Other international helplines can be found at ibiblio.org/rcip/internl.html

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