New Zealand’s Ministry of Justice has been taking an extensive look at the problem of sexual violence and possible solutions to it. Earlier this month it issued a Discussion Document seeking public comment on some possible legislative approaches to the problem. I admire several things about it, not least the careful, comprehensive way the potential variations of each proposed change are laid out, along with the logic behind each and potential costs and benefits. Also, and maybe this is just rhetoric, as a non-New Zealander I don’t know how their government actually works, but it truly seems like public comments are being sought before the legislation is drafted, which seems like a pleasantly democratic alternative to common U.S. procedures.

Questions of procedure aside, the document is well worth a read for anyone interested in debates about sexual assault policy. There are three revisions on the table, but the second – that a woman’s prior sexual relationship with the attacker should be protected from inquiry – is generally well accepted and I’m going to skip over it for now. The interesting ones are whether changes should be made to New Zealand’s definition of consent and whether the entire system whereby sexual assault is prosecuted should be changed.

One proposal involves adopting a positive definition of consent – they list alternatives from various places including “a person consents if he agrees by choice, and has the freedom and capacity to make that choice” and “the voluntary agreement of the complainant to engage in the sexual activity in question” – as opposed to a list of factors that would indicate a lack of consent. They are also considering requirements directing juries to consider steps the defendant took to establish consent. Despite inflammatory headlines to the contrary – “Law may make rape suspects prove consent” – they are not proposing requiring proof of consent in order for the act to be found not to be a rape. The much lower standard they are pursuing has more to do with reminding juries that consent is not the default assumption.

I was initially a little disappointed – I’m a big proponent of negotiated consent requirements – but what I think works well on college campuses is different from what I think is best for a criminal court where jail time is involved. Although I think there should be an expectation of verbal and free consent, shifting the entire burden of proof onto the defendant (i.e. the defendant must prove that he/she obtained consent) violates the “innocent until proven guilty” principle, a loss that is certainly not worth any gain. That said, there are very good reasons that I’m such a fan of negotiated consent requirements on college campuses – is it really such an insane standard to expect that everyone should ask, before engaging in any sexual intercourse, if the other person wants to? I’ll be interested to see how New Zealand balances defendant’s and victim’s rights in their final proposal – they also have a very sound grasp on the fact that changing the law may not be the most efficient way to change the social attitudes that are the root of the problem.

The other question up for discussion, seemingly even more long term, is whether an adversarial system of justice is the best system for sexual assault cases. It’s hard to imagine such a conversation even happening in the U.S., except on college campuses. The New Zealand document provides some interesting examples of approaches taken in other nations, most of which can be found in one college policy or another. In general, the debate revolves around whether prosecutors and judges should handle sexual assault cases differently than other cases, and again, while I tend to say yes at the college level, I’m more leery at a criminal court level.

Ultimately, a very wonky post with virtually no resolution, apologies. The document has really got me thinking about what kinds of changes I would like to see in criminal court procedures in the United States, and I’ve realized that I don’t know. I think that is sort of the purpose of the document, and I will definitely be thinking about it more. I do know that it made clear to me, again, that college disciplinary procedures and U.S. criminal procedures are really different beasts. (Although I suspect that very good college policies could ultimately provide interesting case studies for possible changes to criminal processes.)

For those who don’t want to wade through the whole text, articles reporting on the document can be found here and here, but beware of their exaggerated nature (and note that they could apparently only find one critic to go off the deep end about it).