New Zealand Women's Law Journal - Te Aho Kawe Kaupapa Ture a ngā Wāhine, 2017, 1: 226-233

In the abstract, consent is straightforward: a person either has, or has not agreed to an action. In practice, the question of whether a person has agreed, and what is sufficient for genuine agreement to an action, is complicated by a number of factors, which can include the nature of the relationship between the relevant parties. When will, and should, the law intervene and determine that purported consent is insufficient to be ‘true’ consent?

A recent New  Zealand Court of Appeal case, S (CA338/2016) v R, has grappled with the issue of when it is appropriate for the Court to withdraw the defence of consent in criminal law. The question arose in that case because the defendant, an older man, argued that his partner, a younger woman, had consented to an assault. Although arguably a straightforward case for the withdrawal of the defence (in that there was no social utility to the assault), the case highlights the difficulties in understanding consent within abusive relationships. The Court addressed both the gender and power dynamics at play, but did not take the opportunity to make a more general comment about consent in such relationships. The judgment leaves the door open to future examination of the meaning of genuine or true consent. (From the Introduction). Record #5733