Plain language law

New Zealand law explained for everyone

Crimes Act 1961

Crimes against morality and decency, sexual crimes, and crimes against public welfare - Sexual crimes

128A: Allowing sexual activity does not amount to consent in some circumstances

You could also call this:

“Even if someone doesn't say "no" or fight back, they might not be agreeing to do sexual things.”

You need to know that just because someone doesn’t say no or fight back, it doesn’t mean they agree to sexual activity. There are many situations where a person is not agreeing, even if they seem to allow it to happen.

If someone uses force or threatens to use force on you or someone else, you are not agreeing to sexual activity. This includes if you’re scared they might use force.

You can’t agree to sexual activity if you’re asleep or unconscious. The same is true if you’ve had too much alcohol or drugs to be able to say yes or no.

If you have a condition that affects your mind or body so much that you can’t say yes or no, you’re not agreeing to sexual activity.

If you think you’re doing something sexual with one person, but it’s actually someone else, that’s not agreement. Also, if you don’t understand what kind of sexual activity is happening, you’re not agreeing to it.

Remember, there might be other situations where you’re not agreeing to sexual activity, even if they’re not listed here.

When we talk about ‘allowing’ sexual activity, we mean things like going along with it, letting it happen, taking part in it, or doing it.

‘Sexual activity’ means having sex with someone or doing something indecent to them that would be assault if they didn’t agree to it.

This text is automatically generated. It might be out of date or be missing some parts. Find out more about how we do this.

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM329057.

Topics:
Crime and justice > Criminal law
Rights and equality > Anti-discrimination
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128: Sexual violation defined, or

“This law explains what counts as rape or forced sexual acts without permission.”

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128B: Sexual violation, or

“Sexual violation is a serious crime that can lead to jail time, but the judge might consider special situations.”

Part 7 Crimes against morality and decency, sexual crimes, and crimes against public welfare
Sexual crimes

128AAllowing sexual activity does not amount to consent in some circumstances

  1. A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.

  2. A person does not consent to sexual activity if he or she allows the activity because of—

  3. force applied to him or her or some other person; or
    1. the threat (express or implied) of the application of force to him or her or some other person; or
      1. the fear of the application of force to him or her or some other person.

        1. A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.

        2. A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.

        3. A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.

        4. One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.

        5. A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.

        6. This section does not limit the circumstances in which a person does not consent to sexual activity.

        7. For the purposes of this section,—

          allows includes acquiesces in, submits to, participates in, and undertakes

            sexual activity, in relation to a person, means—

            1. sexual connection with the person; or
              1. the doing on the person of an indecent act that, without the person's consent, would be an indecent assault of the person.

              Notes
              • Section 128A: replaced, on , by section 7 of the Crimes Amendment Act 2005 (2005 No 41).