I commend the Government and the Opposition MPs for the passing of the Crimes (Sexual Offences) Amendment Act 2023 (“the Act”).

In my opinion “the Act” is a progressive piece of legislation because it provides equal protection to all people, regardless of their “gender identity”, “sexual preference” and “sexual orientation” and persons who do not identify as being male or female who are victims/survivors of sexual violation and assault.

The Act does not limit the circumstances in which a person who does not consent to sexual activity and criminalises non-consensual sex between married couples and same sex conduct.

The language has been revised and is more explicit in the definitions of sexual offences: ‘sexual intercourse’ is replaced with ‘sexual connection’ and “genitalia” and “penis” includes surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female, or of indeterminate sex).

Sexual violence and indecent assault carried out forcibly or under threat of injury against a person is a violation of their human right regardless of age and is a criminal offence.

It is no defense that a child consented. I do not understand why the penalty for the same sexual violation is not the same. It’s a form of discrimination. In section 141 a person who commits sexual violation the penalty is a term of imprisonment not exceeding 14 years; Section 143 Incest sexual connection … a term not exceeding 10 years, Section 145 sexual connection or attempted sexual connection with child under 12 the penalty is a term not exceeding 14 years, and in Section 147 sexual connection or attempted sexual connection with a child between 12 and 16 is a term not exceeding 7 years and Section 151 sexual connection with person with significant intellectual impairment is 7 years.

The leader of the Democratic Party, Tina Browne in supporting the Bill made reference to Article 64 of the Cook Islands Constitution and the Cook Islands obligation to CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) and international human rights conventions it has signed.

The Cook Islands signed the Convention in its own right in 2006, it was a party to the Convention in 1985 through territorial application under New Zealand. NGOs and women play a key role in monitoring the implementation of CEDAW in the Cook Islands and have partnered with line ministries to present the country report to the CEDAW Committee at the UN on areas and aspects of CEDAW that have not been implemented.

In 2007 and again in 2018 the CEDAW Committee called upon the Cook Islands to enact without delay the proposed Sexual Offences Bill and to amend as necessary other law, such as the Crimes Act 1969, and to encompass all forms of violence against women, including marital rape, and to fully enforce legislation and ensure that perpetrators are prosecuted and punished. Finally, after 16 years the Cook Islands can submit in its next periodic report to the Committee that it has amended the Crimes Act 1969 and enacted the Sexual Offences Bill. 

The 2008 Disability Act prohibits discrimination against age, marital or relationship status, gender, or sexual orientation of the person and the 2012 Employment Relations Act under section 55 prohibits discrimination on the grounds of gender and sexual preference. 

CEDAW is the only UN treaty solely dedicated to eliminating discrimination against women, and deemed as “one of the most successful human rights treaties ever” and remains the most cited potential authority from which LGBT human rights protection can be inferred. The CEDAW Committee is the treaty body that monitors State compliance with its terms. One function of the CEDAW Committee is to receive “communications” directly from individuals, who, allege that a specific State, in a specific instance, violated their rights under CEDAW.

CEDAW is one of the core international human rights treaties of the United Nations treaty system, which require member states to undertake legal obligations to implement all the provisions of CEDAW systematically and continuously and to respect (equality in laws and policies) the obligation to protect (non-discrimination – direct and indirect) and to fulfil (to uphold equality and eliminate gender discrimination). It is embedded into key Pacific Regional Policy Frameworks. This includes strengthened commitment under the 2012 Pacific Leaders Gender Equality Declaration and Pacific Platform for Action (2018-2030) and the 2030 Agenda for Sustainable Development.

International and regional conventions and declarations are important because they provide specific definitions of what constitutes discrimination and gender-based violence which sets standards not only globally but in national legislation. By knowing and using the Convention, governments have a powerful tool to enhance their law making and oversight work in the area of gender equality.

The next challenge will be to amend the Constitution. The Committee remains concerned that the prohibition of discrimination provided in article 64 of the Constitution of the Cook Islands does not comprise a comprehensive definition of discrimination against women, in line with article 1 of the Convention.