Convicted murderer and sex offender challenges prison sex ban as ‘discriminatory’

Convicted murderer and sex offender Phillip John Smith is contesting the prohibition on prisoners in a sex offenders’ treatment unit from engaging in sexual activity, arguing it constitutes ‘discrimination’.

Smith, currently serving a life sentence for the murder of the father of a child he was sexually abusing, gained notoriety in 2014 for a brief escape to Brazil while on temporary release from prison.

In 2022, Smith’s attempt to permit sexual relations among inmates at the units for child sex offenders in Rolleston Prison was rejected by the High Court. Now, representing himself at the Court of Appeal in Wellington, he is challenging Justice Gerald Nation’s ruling, which concluded that the rule did not violate the Bill of Rights Act.

That decision said allowing sexual activity could jeopardise the effectiveness of therapeutic programmes for prisoners, noting instances of coercion and power imbalances.

Smith argued on Wednesday that participation in the sex offender treatment programme should entail voluntary consent to abstain from sexual activity, but proposed a system where individuals in a relationship could seek approval from authorities to avoid expulsion from the programme.

Smith further claimed the rule discriminated against non-heterosexual men, as it primarily affected them, labeling it as ‘illogical’ and ‘counterintuitive’. He said authorities had failed to demonstrate how the ban would contribute to reducing child sex offenses, arguing that punishing consensual sexual activity contradicted the programme’s objective of understanding such behaviour.

Crown lawyers Peter Gunn and Sofija Cvitanovich argued the rule was not a breach of prisoners’ rights and was not discriminatory. They emphasised that while there was no explicit prohibition on sex in prison, there was also no inherent right to it.

The Crown said Smith had provided insufficient evidence of how the rule disproportionately affected individuals of different sexual orientations, as it applied universally within the units, stressing the importance of the rule in maintaining safety within the facility.

The Court of Appeal has reserved its decision.