V.A. STEWART AGAINST NEW ZEALAND HERALD
Case Number: 3064
Council Meeting: JUNE 2021
Decision: Not Upheld
Publication: New Zealand Herald
Principle: Accuracy, Fairness and Balance
 Mr Stewart complains about the headline to a New Zealand Herald online article Serial child sex offender jailed for raping boy 24 years ago. His complaint falls to be decided under Media Council Principle 1: Accuracy, Fairness and Balance. The complaint is not upheld.
 The article reported on the sentencing of an offender for sexual violation by unlawful sexual connection and indecently assaulting a boy. Both in the headline and in the body of the report the offence of sexual violation by unlawful sexual connection is referred to as rape.
 Mr Stewart complains that use of the term rape is incorrect as rape requires penetration of a vagina. In contrast sexual violation by unlawful sexual connection applies to all other serious sexual assaults but is not the same as rape. While the offences are similar they are not the same and he considers that NZ Herald is inaccurately using the term ‘rape’ in this headline as a form of ‘clickbait’.
 In its initial response to the complainant the NZ Herald stated that: it considered the article was a fair and accurate report of the case, referred the complainant to the definition of sexual violation by unlawful connection in the Crimes Act 1961, and stated that the court heard that the offender in question did rape the boy.
 In its formal response to the Media Council the editor of the Rotorua Daily Post, where the story originated, noted that the complaint is based on the technical wording used in the Crimes Act, as opposed to the very common and accepted use of the word rape and that most people in our society would agree the word has been appropriately used in this context and reflects the seriousness of this atrocious crime. Mainstream news media aim to use commonly used words wherever possible. It also noted that the judge referred to in the article used the word ‘rape’ in his sentencing notes on this matter when referring to Court of Appeal case law.
 The complainant is particularly concerned about the use of the word rape in the headline to this article. We note that the description of the offender’s behaviour as rape is contained in the body of the article as well and for that reason we think the complaint engages Media Council Principles 1: Accuracy, Fairness and Balance, rather than the headlines principle. Principle 1 states:
Publications should be bound at all times by accuracy, fairness and balance, and should not deliberately mislead or misinform readers by
commission or omission …
 We consider that the complainant appears to be technically correct. The definition of sexual violation in s 128 of the Crimes Act 1961 draws a distinction between ‘rape’ (which involves the penetration of genitalia (which does not appear to include the anus) and ‘unlawful sexual connection’ (which involves sexual connection (and includes the introduction of a body part of one person into the anus of another person). In this case, the complainant was convicted of sexual violation by unlawful sexual connection and not ‘rape’ as defined by the Crimes Act.
 However, the meaning of the word rape is not confined to its technical definition in the Crimes Act. The Media Council considers that people not versed in the peculiarities of the Crimes Act would commonly consider ‘rape’ to be any sort of penetrative sexual assault, including of the anus. It is not only members of the public who use the term ‘rape’ in this manner, but also judges who Use the term “anal rape” in their decisions. The sentencing notes upon which the article is based reference Court of Appeal authority to the effect that “starting point of around eight years imprisonment was appropriate for anal rape of a person of either sex if there were no particular aggravating features”.
 We do not consider that the headline is misleading as it refers to the rape of a boy. The context makes it clear that this must be a reference to anal rape rather than the technical Crimes Act definition. Use of the word rape in this context also serves to underscore the severity of the offending in relation to the wide range of behaviours that can amount to unlawful sexual connection.
 The Council considers that the colloquial use of the word ‘rape’ to describe sexual violation by penetration of the anus is not inappropriate in the context of news reporting.
Decision: The complaint is not upheld.
Media Council members considering this complaint were Hon Raynor Asher, Rosemary Barraclough, Liz Brown, Jo Cribb, Ben France-Hudson, Jonathan MacKenzie, Hank Schouten, Marie Shroff and Tim Watkin.
Craig Cooper took no part in the consideration of this complaint.