Act of rape redefined in reform bill

Press, 14 December 1983, Page 1

Act of rape redefined in reform bill

Parliamentary reporter

Changes to the law of rape are contained in the Rape Law Reform Bill introduced in Parliament yesterday. It redefines "rape” as including, as well as sexual intercourse without consent, the offences of forced oral sex, forced anal sex, and violation by means of an object held or manipulated by the offender. "Many of these acts (often part of an over-all rape incident) would be regarded by the average person as just as repugnant, and certainly often as physically and mentally damaging, as unlawful sexual intercourse,” said the Minister of Justice, Mr McLay. “Yet in some cases they are punishable only as indecent assaults, carrying a maximum penalty of seven years imprisonment, instead of 14 years as for rape.”

The bill also defines the “states of mind” that will attract criminal liability for the offence of rape. “Broadly speaking, the defendant will be liable if he knows that the other person does not consent to the act, or is reckless as to whether the other person consents,” said Mr McLay.

The bill redefines the meaning of “reckless” and requires that a defendant’s belief that the other party is consenting be based on “reasonable” grounds if that s

is to excuse criminal liability.

Clause 4, containing the new definitions of “rape,” also clarifies and expands the circumstances in which a person submits to the act because of fear or mistake.

For example, rape may at present be committed by a man impersonating a woman’s husband or falsely misrepresenting the quality and nature of the act.

In future, rape may occurr if the complainant

makes a mistake as to identity or as to the nature and quality of the act and the defendant proceeds knowing of that mistake. Mr McLay said the bill resulted from widespread concern about the prevalence of the crime of rape, and the consequences for the victim, both as a result of the trial process and in their lives generally. A two-volume rape study by the Justice Department and the Institute of Criminology at Victoria University had been published. It had attracted public comments from 111 individuals and organisations. The result was this bill, he said.

But any belief that the legislation could deal with all the problems that arose from rape should be dispelled. Such problems had to be tackled on a broader front, with administrative and social measures having a considerable role to play, said Mr McLay.

"The need for a more sensitive, humane approach is patently clear,” he said. “Something is wrong if so many victims sincerely and justifiably feel that they, and not the offenders, are on trial. “There are substantial changes in the bill, the object of which is to ease the pain, distress, and embarrassment of court proceedings for rape victims, but without prejudicing the vitally important right of the accused to a fair trial,” Mr McLay said.

“For the victim, the ordeal is real. She is obliged to remember, in the greatest detail, matters that every other instinct tells her she should forget. The provisions of this bill will significantly reduce that ordeal.”

Mr McLay said he was sure such changes would be welcomed by the vast majority of people who had been shocked and outraged by recent reports of rape. The Opposition generally welcomed the bill. “If those macho men think violence to women is acceptable, this House must deliver a message to those who sexually attack women, the elderly, and the very young that it is unacceptable,” said Mrs Whetu Tiri-katene-Sullivan (Lab., Southern Maori). Mrs Ann Hercus (Lab., Lyttelton), said the bill in itself would not redgte the

number of rapes and would not change social attitudes, but it would provide a platform for evils to be influenced.

The bill was not a beginning and it was not an end, she said, but it was part of a movement for change; and was welcome. Miss Ruth Richardson (Nat., Selwyn) said the bill had taken the essential step of tackling what was “consent” and was a move to strengthen the rights of women within the law. The bill has been referred to Parliament’s Statutes Revision Committee for study and public comment during the summer recess. '

“Rape within marriage” is excluded from the provi-

sions of the bill, which has already come under criticism in Parliament for the ommission. The new section 128 A in the Crimes Act, 19 61, retained the present law on “rape in marriage,” said Mr McLay.

A man still may not be convicted of rape for sexual intercourse with his wife unless, at the time of the intercourse, he and his wife were living apart in separate residences.

Mr McLay said he wanted the issue to be examined by Parliament’s Statutes Revision Committee, so that public opinion could be fully canvassed during the submissions. This was a sensible aoproach.

But Mrs Hercus said that it was a major flaw in the bill that rape within marriage was still legal.

“The Minister has shown compassion in this bill, but why did he not have a conviction and the sensitivity to abolish the legal immunity of the male spouse?” she asked. “He missed the chance to show leadership, he ignored the submissions of the Advisory Committee on Women’s Affairs, and the woman is still to be regarded as the sexual property of her husband.” But Mr McLay said that where rape happened in marriage, the marriage was obviously in trouble and separation likely to