Mistakes And Ignorance Of Law: Lessons For Sexual Violation Reform From New Zealand
20 Pages Posted: 8 Nov 2024
Date Written: March 01, 2024
Abstract
In successive waves of sexual violation law reform, many common law jurisdictions have attempted to retreat from 'assumed consent', the premise that it can reasonably be assumed another person internally consents in the absence of any communication thereof. In Aotearoa New Zealand, the general trajectory of sexual violation law reform has been away from 'assumed consent' and towards the idea that consent must be communicated, and there are increasing calls for going further by way of adopting affirmative consent reform. However, throughout, a competing concern has been at play: that if the law is reformed to fully reject assumed consent, this might unfairly punish those who are ignorant of law's updated normative stance. This concern is apparent in both reform debates and in historical case law in which a 'mistake of law' has effectively been treated by appellate courts as exculpatory; it is also likely to continue to influence jury decision-making regardless of further doctrinal consent reforms. The 'ignorance of law' concern will need to be squarely confronted in jurisdictions contemplating possible updates to the law of consent. Relatedly, it is arguable that affirmative consent reform itself might play an important educative role, contributing to shifts in prevailing normative views over time.
Keywords: sexual violation, sexual violence, rape, affirmative consent, consent, mistake of law
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