definitions

Throughout these documents you will notice we have used some specific words when referring to sexual harm, the people involved, and those who have a role in preventing it under legislation.  Here’s a quick explanation of some of the terms we’ve used:

a. Person harmed / person who experienced sexual harm – some people refer to the person harmed as a survivor/ victim.

b. Person who did harm / person accused – some people refer to this person as a perpetrator / harasser / alleged abuser.

c. Sexual harm - sexual behaviour that is unwanted/ non-consensual and which has caused harm. It is a catch all phrase to include behaviours that are criminal behaviours like rape, sharing sexual images without consent, images of underage people, etc as well as sexual harassment in the workplace.

d. Sexual harassment - any unwelcome or offensive sexual behaviour that is repeated, or is serious enough to have a detrimental effect, or which contains an implied or overt promise of preferential treatment or an implied or overt threat of detrimental treatment.  Some sexual harassment can be a breach of both workplace legislation and also a criminal offence (sexual violence), e.g. ‘groping’ is sexual harassment and is also the criminal offence of indecent assault.

e. Sexual violence – any form of sexual contact without consent.

f. Consent - a mutual and informed agreement to do something.

g. PCBU ('Person Conducting a Business or Undertaking').This is a broad concept used throughout the Health and Safety at Work Act to describe all types of working arrangements. Although the definition includes businesses, PCBUs are not just companies with employees - sole traders and self-employed people are also considered to be PCBUs. PCBUs in the live music sector include promoters, music venues, production suppliers, security and catering suppliers, artists (where they are operating as a business) and artist managers.

further explanations on sexual harm and consent

What is sexual harm?

Sexual Harm is sexual behaviour that is unwanted/non-consensual and which has caused harm. It is a catch all phrase to include behaviours that are:

  • criminal behaviours like rape, indecent assault sharing sexual images without consent, images of underage people, etc.; and

  • sexual harassment in the workplace (see definition below).

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What is sexual harassment?

Sexual harassment in the workplace is defined[1] as any unwelcome or offensive sexual behaviour that is repeated, or is serious enough to have a detrimental effect, or which contains an implied or overt promise of preferential treatment or an implied or overt threat of detrimental treatment.

Some sexual harassment can be a breach of both workplace legislation and also a criminal offence (sexual violence), e.g. ‘groping’ is sexual harassment and is also a criminal offence of indecent assault.

What does “unwelcome or offensive” mean?

“Unwelcome” behaviour is behaviour that is not wanted or invited.  Whether behaviour is unwelcome or offensive is judged from the perspective of the person experiencing the behaviour. 

What is sexual violation/rape?

Under the law[2] sexual violation is defined as ‘unlawful sexual connection’ and ‘rape’. This is when one person introduces a body part or object into the genitalia or anus or another person, or one person’s mouth or tongue touches another person’s genitalia or anus without consent.

There are also laws for other sexual acts without consent. For example, ‘Indecent Assault’ is sexual touching, that does not include penetration, without a person’s consent.

Any form of sexual contact without consent is a crime in New Zealand.

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What is consent?

Consent is a mutual agreement to do something.  It is where everyone involved wants to do something, and they freely and enthusiastically agree to do it. Consent can be withdrawn at any stage.

The law[3] says that there are some times that a person cannot consent to sexual contact.

A person cannot consent to sexual activity if:

1.       they are forced, threatened or coerced[4]

2.       they are too intoxicated (includes drugs or alcohol),

3.       they do not understand what they are consenting to

4.       they do not know who they are consenting to doing it with

5.       they are under 16

6.       they have a significant disability[5].

The law also says that just because someone doesn’t protest or say ‘no’, it doesn’t mean that consent is there.

Without consent, any sexual situation is sexual violence, rape or sexual assault and can have serious legal consequences for the person charged. The age of consent is the same for same-sex and opposite-sex situations. The law is the same regardless of the gender of the underage person.

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How drunk is “too drunk to consent to sex”?

When someone is too ‘intoxicated’ to consent, they are not in their ‘right mind’ to make a decision about what they want to happen. It is important to understand when someone is too intoxicated to consent so that we can make sure that we are not causing harm and so we know when to intervene to keep other people safe.

The following guide is taken from the Family Planning guide ‘Alcohol Sex and Hauora’ and can provide helpful information about how alcohol can affect people and when consent is not possible.

Levels of intoxication - alcohol[6]

THE HAPPY LEVEL - More confident, talkative, flirty, less shy, feel a buzz, more sociable, relaxed. The ‘happy level’ can make someone feel more confident in social situations. For example, if they are usually quite shy or worried about what others think, they may feel more confident and carefree at this phase. It can also increase energy and have a stimulant effect.

THE LOUD LEVEL - Loud, obnoxious, make decisions they may not usually make, aggressive, touchy-feely, persistent, lack of awareness of their own actions and reactions of others. The ‘loud level’ is where someone may experience loss of judgment. For example, they might hit on a friend’s partner, challenge someone over nothing and be unable to consider consequences.

THE SLURRING LEVEL - Swaying, slurring words, loss of feeling (e.g., temperature, pain and pleasure), slow reactions, finding it hard to focus, crying, distressed, memory loss or ‘blanks’. Someone’s behaviour at the ‘slurring level’ is often what we see as the typical ‘drunk’ in movies. They have lost the ability to react physically and socially. For example, they might bump into things, may not notice their surroundings, may not make sense when talking and may get injured easily but not feel the full extent of the injury.

THE PASSING OUT/ VOMITING LEVEL - Passing in and out of consciousness, falling over, vomiting, unable to stand or walk, feel dizziness, nausea. The ‘passing out level’ is when someone completely loses their coordination. They may find it difficult to function at all, for example; walk, talk, stand up, and stay conscious. This can affect their safety, ability to ask for help or to get home.

Family Planning suggests that people are too intoxicated to consent if they are at the slurring or passing out/vomiting level.

[1] Sexual harassment is against the Human Rights Act 1993 and the Employment Relations Act 2000.

[2] Section 2 of the Crimes Act 1961

[3] https://www.legislation.govt.nz/act/public/1961/0043/latest/DLM329057.html

[4] A person is coerced where they are made to do something even though they do not want to do it

[5] That stops them understanding what they are consenting to, and the implications of what they are saying yes to.

[6] From pg. 39 of the Family Planning Toolkit ‘Alcohol, Sex and Hauora’ by Kate Butterfield-Reese


Click here for information about some of the offences that can also be sexual harassment/ bullying.