NEW ZEALAND WOMEN’S LAW JOURNAL TE AHO KAWE KAUPAPA TURE A NGĀ WĀHINE Volume 111 November 2019 Volume 1 1 1, November 2019 Copyright © individual contributors 2019 Published by LexisNexis New Zealand Limited Level 1 138 The Terrace Wellington 6011 The mode of citation of this journal is: [2019] NZWLJ (page). New Zealand Women’s Law Journal — Te Aho Kawe Kaupapa Ture a ngā Wāhine is a double-blind peer reviewed journal. Decisions as to publication are made by the Editors-in-Chief. A catalogue record for this journal is available from the National Library of New Zealand. ISsN 2537-9658 (Print) ISsN 2537-9666 (Online) Editors-in-chief: Josie Te Rata and Monique van Alphen Fyfe Deputy editors: Charlotte Doyle and Katharine Guilford Marketing managers: Ihlara McIndoe and Francy Sulikosky Associate editors: Charlotte Agnew-Harington, Charlotte Best, Georgiana Fraser, Mariah Hori Te Pa, Christina Laing, Molly McCarthy, Eleanor Milne, Tariqa Satherley, Nina White and Lexie Kirconnell- Kawana Technical editors: Grace Abbott, Mia Barnett, Linda Hasan-Stein, Emma Littlewood, Mothla Majeed, Emily McGeorge, Poppy Mitchell-Anyon, Madison Russell, Grace Tong and Lauren Zwi Trustees: Allanah Colley and Ana Lenard Advisory board: Hon Justice Susan Glazebrook, Hon Justice Susan Thomas, Hon Deputy Chief Judge Caren Fox, Lady Deborah Chambers QC, Kate Davenport QC, Frances Joychild QC and Mary Scholtens QC Academic review board: Stephanie Marsden, Professor Julia Tolmie, Helen McQueen, Professor Yvette Tinsley, Cassandra Mudgway, Professor Elisabeth McDonald, Jane Derbyshire, Daisy Williams, Professor Annick Masselot, Professor Jacinta Ruru, Natalie Walker, Associate Professor Linda Te Aho, Māmari Stephens, Brenda Midson, Associate Professor Valmaine Toki, and Associate Professor Nicola Wheen Contributors: Joy Liddicoat, Wendy Parker, Charlotte Shade, Jan Logie, Vanessa E Munro, Rosa Gavey, Fiona Culliney, Kate Fitzgibbon, Luke Elborough, Cheyenne Conroy-Mosdell, Camille Wrightson, Emily Stannard, Justice Cull QC, Seb Recordon, Julia Tolmie, Fleur Te Aho, Katherine Doolin, Sylvie Arnerich, Natanahira Herewini, Alice Anderson, Mary Sholtens QC, Jenny Cooper QC, Elizabeth A Sheehy, Victoria Stace, Kade Cory-Wright, Taylor Mitchell, Danielle Houghton, Michelle Byczkow and Kirstey Thompson Typesetting: Jess Hubbard Sponsors: LexisNexis, ADLS, Buddle Findlay and Young Hunter CONTENTS — RĀRANGI UPOKO Josie te Rata and Editorial — Kōrero Tīmatanga 1 Monique van Alphen Fyfe Joy Liddicoat and Wendy Parker Foreword — Kupu Whakataki 3 Part One — Sexual Violence Charlotte Shade with Culture is key: Sexual violence policy and 5 Jan Logie prevention in Aotearoa New Zealand — where to from here? Vanessa E Munro Judging juries: The “common sense” 13 conundrums of prosecuting violence against women Rosa Gavey Affirmative consent to “sex”: Is it enough? 35 Fiona Culliney and The sexual violence pilot court 48 Kate Fitzgibbon Luke Elborough and A snapshot of the Law Commission’s 60 Cheyenne Conroy-Mosdell second review of the Evidence Act 2006: Fine lines to draw in sexual violence cases Camille Wrightson When good boys do bad things: T v Police 79 Part Two — Family Emily Stannard with Ka kōrure te hau: Lankow v Rose 93 JUSTICE CULL QC and its aftermath Seb recordon Rules or discretion? Towards a better 100 approach to quantum in addressing post-separation economic disparities in New Zealand Julia Tolmie, Fleur Te Aho anD Criminalising parental failures: 136 Katherine Doolin with Documenting bias in the criminal Sylvie Arnerich justice system and Natanahira Herewini Part Three — Courts and Litigation Alice Anderson with “Even now, people still see a good lawyer 183 Mary Sholtens qc as being a man in a suit”: The voice of women in New Zealand’s senior courts Jenny Cooper Qc Who gets to speak in New Zealand’s top 189 courts? Elizabeth a sheehy and Feminist interventions: Learning from 201 Julia Tolmie Canada Part Four — Autonomy Victoria Stace Reducing the risks from high-cost 243 short-term lending and protecting vulnerable consumers Kade Cory-Wright Sex work in New Zealand: A case for 277 repeal of Section 19 of the Prostitution Reform Act 2003 Danielle Houghton The Abortion Legislation Bill: Welcome 290 if overdue reforms Taylor Mitchell “I’m here, I’m alive, I’m telling you”: The 302 deferment of sex self-identification in the Births, Deaths, Marriages, and Relationships Registration Act 1995 Michelle Byczkow and Testosterone maketh the man or woman: 327 Kirsty Thompson Slowing down Caster Semenya EDITORIAL — KŌRERO TĪMATANGA It is natural to experience a sense of trepidation when stepping up to the helm of a waka navigated so ably by those who toiled to build it. We, the newly minted Editors-in-Chief of the New Zealand Women’s Law Journal — Te Aho Kawe Kaupapa Ture a ngā Wāhine, were concerned that there would be little new content; it has surely all been said before; what new direction could we take? We scoured the archives of the Feminist Law Bulletin, observed contemporary decisions of the judiciary and legislature, and received a multitude of submissions. We marvelled at the recurring themes. Yet even when territory feels familiar, there is nuance in each tide as it moves against shifting shores. In this edition, we wanted to trace the palimpsest of these tides and shorelines. To do so, we enlisted the help of those who navigated them before us: our tuākana. As a result, several sections of this edition are framed by an intergenerational conversation — tuakana–teina whakawhiti kōrero — which begin to map the contours that have shaped our journey thus far. Each of the contributors to this edition of the Journal has taken a critical approach to legal thinking, whether that legal thinking is cutting edge, out-dated, or a response to complicated circumstances. And while some if it is not “new”, in the sense that iterations of similar issues have challenged wāhine rōia before us, it is in the iterations that nuances and differences are teased out, and in their accumulation that a body of knowledge and critique — a canon and a solidarity — is forged. We see this collection as adding to our understanding of what the law is, what it means, and how it affects us. We see it as shaping the island in our imagination; that place, just over the horizon, where we want the law to go.1 We extend our deepest thanks to those who have worked hard for this edition of Journal to come to fruition: to the contributors for your courageous submissions, the reviewers for invaluable critique, our team of editors and 1 Joseph Williams “Can you see the island?” (October 2015) Māori Law Review 21. 1 [2019] NZWLJ marketing managers for hours and hours of brilliant work, and our publishing professionals for your patience and generosity. To our whānau and friends, mentors and models, colleagues and cheerleaders, thank you for your ongoing and generous support. And to our deputy editors and the trustees, kei te mihi nui: this edition stands on the shoulders of your outstanding mahi. Through producing, reading, and discussing this Journal, we (māua) hope that we (tātou) contribute to a canon that is continually critiqued and refined to enable all wāhine rōia to flourish in the world of law. Iteratively and cumulatively; onward, to the island just over the horizon. Josie Te Rata and Monique van Alphen Fyfe Editors-in-Chief 27 October 2019 2 FOREWORD — KUPU WHAKATAKI The feminist story of how far we have come and how much there is left to do is not a new story, nor one specific to the tuākana and tēina represented in the inter-generational conversations (whakawhiti kōrero) in this, the third issue of the New Zealand Women’s Law Journal — Te Aho Kawe Kaupapa Ture a ngā Wāhine. It stretches back behind us and will carry on beyond us, and it may in fact never end. But this point-in-time examination is ours, specific to this time and place and to our unique journey in this land. And we are delighted to be asked to contribute to it. Along with many other tuākana, we have been walking this path for a few decades, in a variety of ways, including as editors of the Feminist Law Bulletin, founded near the end of last century, and as advocates with deep personal involvement in some of the law reforms discussed in this Journal. We welcome the critiques of the reforms in this issue, though it pains us to think about who we left behind (Prostitution Law Reform), the unintended consequences that were inadvertently created (Sexual Offences Act and Property (Relationships) Act) and the gaps we were simply unable to fill (Taylor Mitchell’s questions on legal certainty for gender diverse people). As many of the articles and commentaries reveal, our paths to equality do not travel in a straight line. Instead, contributors paint “a picture of the messy reality — the steps forward and the steps back — that is closer to the truth” of women’s journey to equality.1 Out of our messy reality, we see that some of the steps our generation took forward were remarkable while others could have been better. We see progress, we see some good foundations to build on, and we see more to do: from bodily autonomy, to gender identity, to the right to be free from violence, and to have a voice as women lawyers in the legal system. The chance to provide context helps to place tuākana decisions within 1 Srilatha Batliwala and Alexandra Pittman Capturing Change in Women’s Realities: A Critical Overview of Monitoring and Evaluation Frameworks and Approaches (Association for Women’s Rights in Development, Toronto, 2010) at 7. 3 [2019] NZWLJ their time and place, and shows how recently many archaic views held sway. The conversation with Cull J reminds us of the importance of strategic litigation in the feminist strategies of agitation, litigation and negotiation of law reform.