There is something beguilingly simple about “yes means yes”.

Sex should be voluntary, mutual and desired. Nobody should be permitted to treat silence, fear or physical immobility as permission. Put that way, affirmative consent sounds less like a controversial legal reform than a statement of elementary decency.  But a slogan is not a criminal standard.

Criminal law must do more than express an admirable moral ideal. It must identify prohibited conduct with enough clarity that ordinary people can regulate their behaviour before the event. It must also be capable of consistent application by Police, prosecutors, judges and juries after the event.  New Zealand’s proposed affirmative-consent reforms may not satisfy either requirement.

What The Law Currently Says

Sexual violation presently requires the Crown to prove two things beyond reasonable doubt:

1. the complainant did not consent; and

2. the defendant did not believe, on reasonable grounds, that the complainant consented. [1]

Section 128A of the Crimes Act 1961 then identifies circumstances that do not amount to consent. A person does not consent merely because they failed to protest or resist. Nor can consent arise where a person submits because of force or fear, is asleep or unconscious, is too affected by alcohol or drugs to consent, or is fundamentally mistaken about the identity of the other person or the nature of the activity.[2]

The legislation does not positively define consent.  In Christian v R, the Supreme Court rejected the proposition that consent must always be positively expressed. The Court held that silence or non-resistance alone is insufficient, but that consent may sometimes be inferred from “something more” found in the parties’ words, conduct or circumstances.[3]

The majority gave the example of an established relationship in which mutual expectations have developed over time and the activity is consistent with those expectations. That does not mean a relationship supplies permanent consent. It means that context may form part of the evidence from which consent, or a reasonable belief in consent, is assessed.  The proposed reform would deliberately change that position.

What The Proposal Would Change

In July 2026, both National and Labour committed themselves to affirmative-consent reform. National described the change as requiring a “yes” rather than the absence of a “no”, while expressly acknowledging that the “yes” could be communicated through words or actions. Labour said its proposed Bill would define consent as something communicated through words or conduct and would require reasonable steps to establish it.[4]

The most developed public model is the draft Sexual Violence (Consent Reform) Bill prepared by Associate Professor Anna High for the Helen Clark Foundation.[5]

That draft would:

• define consent as free and voluntary agreement at the time of the particular sexual activity;

• provide that a person does not consent if they say or do nothing to communicate consent; and

• require the court, when considering reasonable belief, to examine whether the accused said or did anything immediately before or during the activity to ascertain consent.

This is not a requirement for a written contract. It does not require the word “yes”. It does not necessarily require a mechanical request for renewed permission at every stage of an encounter.  Consent may be communicated through conduct.  That is also where the difficulty begins.

What Conduct Counts?

If conduct can communicate consent, what conduct is sufficient?  Is returning a kiss enough to communicate agreement to the kiss? Presumably.  Does it communicate agreement to something more? Presumably not.

What about moving closer, removing clothing, guiding somebody’s hand, pulling them towards you, initiating one activity, or responding enthusiastically without speaking? Does each act provide consent only to itself, or can meaning be accumulated from the interaction as a whole?

The legislation cannot realistically catalogue every gesture through which human beings express attraction, hesitation, trust, desire or uncertainty. Nor can it eliminate the fact that the same conduct can carry different meanings between different people, relationships and cultures.

Research into ordinary sexual interaction has found that interest is often communicated through accumulated gestures rather than a single identifiable act. Sexual and non-sexual interaction may develop gradually, with people sometimes using deliberate ambiguity to express interest while limiting the embarrassment or vulnerability of outright rejection.[6]

That does not excuse ignoring uncertainty. It does mean that the law is attempting to impose a clear communicative boundary upon behaviour that is often cumulative, contextual and deliberately indirect.  The result may not be clarity. It may simply move the ambiguity.

Instead of asking whether a person consented, courts will ask whether they communicated consent. The answer will still depend upon a retrospective interpretation of disputed conduct.

And When Nobody Agrees What Was Said?

The reform cannot solve the central evidential problem in sexual cases.  One person may say:  “I asked, and they pulled me towards them.”  The other may say:  “That never happened.”

There will ordinarily be no recording, independent witness or reliable contemporaneous account. The case remains a contest of credibility. The difference is that the existence and legal sufficiency of a particular communication become even more important.

The burden of proof would not formally move. The Crown would still have to establish absence of consent and absence of a reasonable belief in consent beyond reasonable doubt. Suggestions that the accused would have to prove consent are legally wrong.  The draft report itself stresses this point.[7]

But formal burdens and practical pressures are not identical. Once the prosecution alleges that no affirmative communication occurred, an accused person may face considerable pressure to identify the particular words, gestures or conduct upon which consent was understood. The right to silence remains, but silence may become an uncomfortable position when the decisive question is what the accused did to ascertain consent.

That is not a reverse burden in law. It may nevertheless resemble one from the dock.

The Law Will Explain Itself Later

Supporters may say that uncertainty can be addressed through public education.  That assumes there is a sufficiently clear rule available to teach.

The slogan “yes means yes” suggests an express affirmative response. Its defenders then explain, correctly, that consent can be communicated through conduct. But that concession immediately produces the unanswered question: what conduct counts?

The legislation will not provide an exhaustive answer. Those boundaries will be developed through prosecutions, judicial directions and appellate decisions.

Even then, clarity will arrive slowly and incompletely.  A jury ordinarily returns a general verdict of guilty or not guilty. It does not explain whether it disbelieved an alleged conversation, found that a gesture never occurred, regarded the gesture as insufficient, or concluded that the accused’s interpretation was unreasonable. Special verdicts are legally possible but seldom used.[8]

Consequently, most trials will produce no public explanation of the precise boundary they applied.  Appellate courts may eventually clarify questions of law. But an appeal can only address an issue raised by the particular evidence and directions in that case. It cannot produce a comprehensive dictionary explaining the legal meaning of every returned kiss, guiding hand, removed item of clothing or change in enthusiasm.

Practical clarity may therefore be purchased through years of prosecutions involving real complainants and real defendants.

The proposed law demands clearer communication from lovers than the legal system promises to provide about the law itself.

The Loss Of Spontaneity Is Not A Trivial Objection

It is easy to caricature concern about romance or spontaneity as the complaint of somebody who simply does not want to ask.  That response is inadequate.

The issue is not whether communication is desirable. Good communication plainly reduces misunderstanding and harm. The question is whether every desired sexual encounter that lacks legally recognisable communication should fall outside the criminal law’s definition of consent.

The Helen Clark Foundation report confronts this directly. It acknowledges that affirmative-consent law cannot accommodate “desired but non-communicative sexual intimacy”. It calls that consequence a “necessary trade-off”.[9]

That is an extraordinary proposition.

It means two people may both privately desire the encounter, neither may experience it as a violation at the time, and yet the law will deem consent legally absent because the required communication cannot be established.

A criminal law that intentionally separates legal consent from mutual desire requires more justification than the assertion that communication is morally preferable. It must explain why the state should treat desired but insufficiently communicative intimacy as legally non-consensual, and how it will identify the offender if both parties participated on the same ambiguous basis.

The Dating Pool May Not Respond As Intended

Legal rules do not operate only inside courtrooms. They change perceptions of risk.  People who believe a serious criminal boundary is unclear may change their behaviour even if they have no intention of harming anyone. Some will communicate more explicitly. That is the reform’s intended effect.

Others may reduce casual encounters, avoid dating or withdraw altogether.  A 2026 study published in the Journal of Health Economics examined consent-based legal reforms across European countries. It estimated an approximately four per cent reduction in fertility relative to the mean, associated with reduced couple formation and increased abortion rates. The evidence was consistent with more risk-averse people withdrawing from dating and partner markets, leaving a remaining pool that was less precautionary.[10]

That study does not prove that the proposed New Zealand law would produce the same result. The countries, legal baselines and dating cultures differ. New Zealand already makes absence of consent central to sexual violation, and s 128A already prevents silence or non-resistance from being treated as sufficient by itself.  But the study makes it impossible to dismiss behavioural and demographic effects as fanciful.

New Zealand’s fertility rate has already fallen to historically low levels. Stats NZ recorded a total fertility rate of about 1.55 births per woman in 2024 and now uses similarly low fertility assumptions in its national population projections.[11] 

A reform that may affect dating participation, couple formation and fertility deserves proper demographic analysis, even if protection of sexual autonomy remains the primary objective.

The Adverse-Selection Problem

The most troubling possibility is not simply that fewer people will date.  It is that withdrawal will not occur randomly.  People who are cautious, rule-conscious and highly sensitive to legal risk may be the most likely to withdraw. Those who are impulsive, less attentive to rules, or confident that consequences will not reach them may be comparatively unaffected.

That creates a brutal paradox:  A law intended to make sexual relationships more cautious may drive cautious people out of the dating pool, leaving everyone else with a less cautious pool of potential partners.

If cautious men are particularly likely to withdraw because they perceive the enforcement risk as falling principally upon them, women do not necessarily inherit a safer dating pool. They may inherit one containing a higher proportion of men who were not concerned by that risk in the first place.

There is also a longer-term hypothesis.  If the reform changes who forms relationships and who becomes a parent, the parent population may gradually contain a larger proportion of people with higher risk tolerance. Research has found strong correlations between the risk attitudes of parents and their children, reinforced by socialisation and assortative mating. Large genetic studies have also identified a partly heritable component to general risk tolerance and risky behaviour.[12]

That does not establish that affirmative-consent legislation will genetically transform the population. No study has demonstrated such an outcome, and it would be irresponsible to present it as fact.  But the chain of possibility is coherent:

1. legal uncertainty disproportionately deters risk-averse people;

2. withdrawal changes the composition of the dating pool;

3. that change affects relationship and parent formation; and

4. parental traits and attitudes are transmitted, to some extent, across generations.

A policy intended to encourage caution could therefore influence who dates, who reproduces and which attitudes become more prevalent in the next generation.  At minimum, that possibility deserves investigation before it becomes an unintended national experiment.

Gender-Neutral Words Do Not Guarantee Gender-Neutral Enforcement

The proposed legislation uses gender-neutral language. The institutions applying it do not operate in a social vacuum.

Sexual violence is heavily gendered. Most reported victims are women, and most accused people are men. Those realities understandably shape Police practice, prosecution decisions and public expectations.  But they can also produce blind spots.

Ministry of Justice data show that male sexual victimisation remains substantially underreported and is affected by social and institutional myths that sexual assault does not happen to men. Reports made by men were less likely to result in court action or conviction within two years, although conviction rates became similar after six years and the greater prevalence of historic childhood allegations among male complainants partly explains the delay.[13]

The point is not that men and women experience sexual violence at equal rates. They do not.  The point is that a formally neutral offence may still be reported, investigated and prosecuted through gendered assumptions about who initiates sex, who is passive, who is dangerous and who is credible.

If two people engage in desired but ambiguously communicated activity, affirmative-consent theory may treat either as having acted without legal consent. In practice, the system will still identify one person as the complainant and another as the accused.

Parliament should not assume those classifications will be neutral merely because the statutory letters “A” and “B” are.

Reform Requires More Than An Admirable Intention

None of this denies the reality of sexual violence.  Nor does it defend the proposition that silence, immobility or fear should be treated as permission. Existing law already rejects that proposition.

The issue is whether an affirmative-consent model is sufficiently precise to define serious criminal offending, whether its behavioural consequences have been adequately examined, and whether institutions with a demonstrably gendered history can apply it fairly.

The supporting report accepts that empirical evidence of affirmative-consent reform’s educational and deterrent effects is limited. It also acknowledges that doctrinal reforms have sometimes been applied incorrectly or inconsistently and have not necessarily translated into better outcomes.[14]

Before legislating, Parliament should require:

• a published exposure draft;

• model jury directions showing how communication through conduct would be explained;

• realistic examples identifying what conduct may and may not be sufficient;

• a gender-impact assessment covering complainants and accused people;

• analysis of dating, relationship and demographic effects;

• independent evaluation of comparable overseas reforms; and

• a statutory review after implementation.

Affirmative consent may be an admirable ethical ideal. That does not automatically make it a sufficiently clear criminal standard.  The danger is not that the law will require signed contracts before intimacy. The danger is that it will promise clarity, preserve ambiguity, and then leave Police, prosecutors and unexplained jury verdicts to decide retrospectively whether an ordinary human interaction crossed the boundary into one of the most serious crimes in the statute book.

“Yes means yes” is easy to teach.  What “yes” looked like, whether it happened, and whether it was legally enough will be decided much later.

Possibly by people who never have to explain their answer.

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References

[1] Crimes Act 1961, s 128.

[2] Crimes Act 1961, s 128A.

[3] Christian v R [2017] NZSC 145 at [43]–[46].

[4] New Zealand National Party, “National Will Modernise Consent Laws” (19 July 2026); New Zealand Labour Party, “National Should Stop Delaying Consent Law Reform” (19 July 2026).

[5] Anna High, Options For Consent Reform In Sexual Violence Law (Helen Clark Foundation, June 2025) at 5–8 and 34–38; Draft Sexual Violence (Consent Reform) Bill.

[6] Melissa Hardesty and others, “Indiscrete: How Typical College Student Sexual Behavior Troubles Affirmative Consent’s Demand For Clear Communication” (2022) 19 Sexuality Research and Social Policy 1114.

[7] High, above n 5, at 32–33.

[8] New Zealand Law Commission, Juries In Criminal Trials NZLC R69 (2001) at [315]–[318].

[9] High, above n 5, at 33.

[10] Adrian Mehic, “Consent-Based Laws And Aggregate Fertility” (2026) Journal of Health Economics; PubMed record.

[11] Stats NZ, Births And Deaths: Year Ended December 2025; Stats NZ, National Population Projections 2024-Base.

[12] Thomas Dohmen and others, “The Intergenerational Transmission Of Risk And Trust Attitudes” (2012) 79(2) Review of Economic Studies 645; Philipp Koellinger and others, “Genome-Wide Association Analyses Of Risk Tolerance And Risky Behaviors In Over One Million Individuals Identify Hundreds Of Loci And Shared Genetic Influences” (2019) 51 Nature Genetics 245.

[13] Ministry of Justice, Sexual Assault Victims: Experiences Of Women And Men (2025).

[14] High, above n 5, at 30–32.