We agree on a number of things: sexual violence must be taken seriously. Consent is crucial to the law on sexual violence.

And reform should be based on careful legal analysis rather

We agree on a number of things: sexual violence must be taken seriously. Consent is crucial to the law on sexual violence.

And reform should be based on careful legal analysis rather than political posturing.

The good news is that the current push for affirmative consent is indeed based on careful legal analysis. Last year, I led a review of consent law reform for the Helen Clark Foundation. That work examined existing law, comparative jurisdictions, consent education, and decades of legal scholarship.

Our conclusion was straightforward: New Zealand should adopt an affirmative consent model. Our draft legislation, including explanatory notes, is publicly available.

These reforms address the problem that, in some circumstances, New Zealand law still allows consent to be assumed or inferred – despite a person not doing or saying anything to communicate their free and voluntary agreement.

Research shows that many victims experience involuntary immobility, sometimes called the “freeze response”, during sexual assault. Others passively submit to unwanted sex because they are frightened, intimidated, or conditioned by patterns of coercion within a relationship.

If the law allows consent to be inferred from circumstances other than a person’s actual communication, the law may fail to protect those individuals. For this reason, our report argues that the law should define consent as something that must always be affirmatively communicated.

One of the most persistent misunderstandings about affirmative consent is that it requires verbal contracts or scripted conversations.

For example, Bloem describes a couple who have been married for 20 years. One partner initiates intimacy, the other actively reciprocates, and neither says a word. Most people would regard that interaction as consensual.

And we agree. A legal system based on affirmative consent would reach the same conclusion.

Our reform proposal expressly recognises that a person’s free and voluntary agreement may be communicated through words or conduct (as does the Member’s Bill introduced by Labour’s Camilla Belich).

Reciprocation, active participation, or other communicative behaviour can all convey consent. The law would not require magic words. It would simply require some form of communication.

Bloem also notes that the courts would still need to decide what conduct is sufficient to communicate consent. That is true.

Human relationships are diverse. People communicate differently. Trying to set out an exhaustive list of approved words or actions would be intrusive, unrealistic, and likely to chill sexual freedom.

Our proposal does not mean the law will dictate how people need to communicate consent. It simply requires that consent be communicated somehow. There will always be room for factual disagreement about what particular conduct meant in a particular case. Affirmative consent is not a silver bullet, and it does not pretend to be one.

Bloem’s most serious concern is that affirmative consent may undermine the presumption of innocence by effectively shifting the burden of proof on to defendants.

While this concern deserves to be taken seriously, it is also mistaken.

New Zealand’s law on sexual violation requires that the prosecution prove beyond reasonable doubt that the victim did not consent, and the accused did not reasonably believe the victim was consenting. Affirmative consent does not change that.

Our reform proposal is moderate and is modelled in part on provisions already in force in the United Kingdom. It recommends that whether an accused took steps to ascertain whether the victim was consenting should be relevant (but not conclusive) in assessing guilt.

This does not reverse the burden of proof. The prosecution still needs to prove the defendant could not have reasonably believed the victim was consenting. But if the prosecution can show that no such steps were taken – for example, that the defendant never checked in with the victim or asked them if they were okay – then that will go to the prosecution’s case.

Finally, Bloem questions whether New Zealanders are willing to change their sexual behaviour to comply with the law.

For most people, no change will be required at all.

Our schools, universities, the New Zealand police, youth organisations, and consent educators already teach that “only yes means yes”. Consent increasingly is understood throughout society as something active, communicative, and mutual.

Reform would simply bring legal standards into alignment with already accepted social expectations.

Of course, requiring affirmative consent alone will not solve the problem of sexual violence.

Cases involving conflicting accounts of private events will continue to arise. Rape myths and systemic barriers will not disappear overnight. Law reform alone cannot transform social attitudes or behaviour, or guarantee better trial outcomes.

But neither should our law continue to permit assumptions about consent where a person has not done or said anything to indicate their free and willing agreement. When the stakes involve another person’s bodily autonomy, assumptions aren’t good enough. There should be communication.

That’s not a radical claim. It is a modest, principled change that brings the law into line with the values we already teach: communicate, don’t assume. And that is precisely why Parliament should adopt it.

Anna High is Professor of Law at the University of Otago and researcher for the Helen Clark Foundation’s 2025 report Addressing Sexual Violence in New Zealand.

Catch up on the debates that dominated the week by signing up to our Opinion newsletter – a weekly round-up of our best commentary.