Sexual violence law recommendations

Justice Minister Amy Adams is considering a Law Commission report that recommends significant changes to how sexual violence and assault cases are dealt with by the courts.

Many sexual complaints don’t even get to court, in part due to the stress and difficulties for complainants in sexual cases.

And many cases that do get to court are indecisive, with 8% of trials being retrials due to hung juries, compared to 0.8% of all trials.

In Report suggests no juries in rape trials NZ Herald lists key Law Commission recommendations:

A sexual violence court as a two-year pilot, with specialist judges and counsel.

  • Have District Court and High Court judges take training courses in order to sit on a sexual violence case.
  • Consider an alternative to juries in such cases — perhaps a specially trained judge alone or judge with two expert “lay assessors”.
  • Consider limiting the right to trial by jury in sexual violence cases.
  • Enable victims to seek redress such as an apology, and which wouldn’t lead to a conviction.
  • Ensure cases start in a timely fashion.

Sexual complaint cases can be particularly difficult due to the (often) lack of witnesses in incidents involving just the accused and the complainant, and also the many grey areas of what constitutes offences and what constitutes consent or lack of consent.

The Law Commission has also recommended providing an alternative process for certain lower-level cases, outside the criminal justice system.

Victims would initiate the process and seek redress such as an apology or payment and the perpetrator would not have a criminal record.

That sounds like potentially a good way of dealing with less serious cases.

There were also “powerful cultural conceptions” that were “unique to sexual violence as a form of criminal offending”.

These could include moral beliefs about how a woman should behave, and misplaced ideas about how sexual violence occurs or the “correct” response.

The commission concludes there is a case for eventually putting sexual violence cases before something other than a jury – perhaps a judge alone or judge with two expert “lay assessors”, as in Germany.

That also sounds like it is worth trying.

Leave a comment

36 Comments

  1. Alan Wilkinson

     /  6th August 2016

    As I posted on the Chiefs thread, judge alone trials are a risky experiment. What is the evidence from elsewhere that they will not have unintended adverse consequences?

    Reply
    • They are also considering judge+two experts trials which should be safer.

      Reply
      • Alan Wilkinson

         /  6th August 2016

        What makes you expert? I deeply mistrust expertise rather than fact-based testable science. Legal assumptions of expertise have been responsible for many of the worst judicial failures.

        Reply
        • Gezza

           /  6th August 2016

          So much information is suppressed Alan. Judges are better trained to make properly weighed and balanced assessments of credibility of relevant information that is not made available to juries. They spend decades learning to do it, starting at Law School & continuing for the rest of their careers.

          Reply
          • Ahhhhh…. that is a big reason NOT to allow a Judge only process. Makes it an even more opaque process. Juries are a balance to Judicial power and backroom deals.

            No evidence should be kept from the jury as long as it was gathered in accordance with the rules.

            Reply
            • Gezza

               /  6th August 2016

              Nope. Wrong. Sorry. There are good reasons for rules about what is admissable, yes. But judges competing worldwide to be the most lenient have buggered that up sometimes.

              Relevant information is what counts if it establishes the truth. Not whether the information obtained was obtained in accordance with rules that were misunderstood, or even ignored. Justice should be about the truth. Juries often don’t know the truth.

            • Alan Wilkinson

               /  6th August 2016

              I pretty much totally disagree with all of that. You are being quite bizarre in claiming there are good reasons for suppressing info from juries but judges can use it. They can’t and shouldn’t.

            • Gezza

               /  6th August 2016

              I’ve gone off you a bit now.
              Some information is suppressed for reasons that having nothing to do with the truth but because there was some technical legal problem in how it was obtained or, e.g. it is subject to medical professional privilege.

            • Gezza

               /  6th August 2016

              Perhaps it would help if I used the term ‘inadmissable’ – which is possibly legally different from ‘suppressed’.

            • Alan Wilkinson

               /  6th August 2016

              You are still talking nonsense, Gezza. You need to get some advice from your (real) brother to straighten you out. Inadmissable evidence includes that obtained by duress and torture as well as other illegal means. There is zero justification for judges using it when juries cannot.

            • Gezza

               /  6th August 2016

              Nup. Goin so far overboard now yer ass is below water.

          • Alan Wilkinson

             /  6th August 2016

            As I’ve noted, judges perform no better than anyone else when their ability to detect lies is tested objectively. That is the critical factor in she says he says disputes. As to suppressed evidence, as far as I can see their training is simply to ignore it. I’ve said previously I don’t agree with the argument that juries are unable to deal with it properly if well advised.

            Reply
          • Corky

             /  6th August 2016

            Judges also take tikanga courses to better understand Maori. That’s not working-neither will this. What could happen is the judges biases may have free rein. What of the two experts should they be implemented? Will they be able to overrule the judge? That’s doubtful. Will they be able to publicly comment should they believe the judge got it wrong. Again, that is also doubtful.

            Reply
            • Gezza

               /  6th August 2016

              As long as the rights of appeal exist, I don’t see a problem here Corky.

            • Corky

               /  6th August 2016

              Ok, but aren’t we back to square one with another judge; with the same process?
              Given the amount of appeals would probably be the same as jury trials, its a moot point as to the advantages, let alone the reputation of judges should their rulings be continually appealed thereby giving the perception of incompetence that may be undeserved, or worse, being unable to be scrutinized independently.

            • Gezza

               /  6th August 2016

              Can you give me any reason(s) why the number of appeals should be any different from the number that happen with Jury trials?

            • Alan Wilkinson

               /  6th August 2016

              Our appeal court is next to useless. So much so that senior lawyers have publicly said they refuse to take cases to it. And they won’t rejudge the facts anyway, just the law.

            • Gezza

               /  6th August 2016

              And they won’t rejudge the facts anyway, just the law.
              That always includes examining whether the judge correctly weighed & assessed the evidence & gave adequate reasons for their decisions.

              I am no great automatic fan of Judiciary JJ in NZ but I have even less faith in juries in sexual offence cases.

              I do think this proposal for lower level offences (e.g. we were both drunk but I didn’t say yes & I didn’t really know what was going on) is a good one:

              Victims would initiate the process and seek redress such as an apology or payment and the perpetrator would not have a criminal record.

              and should be explored before charges are laid.

            • Gezza

               /  6th August 2016

              @ Al
              PS: Mini baguette. 14 seconds @ 1400 w is perfect.

            • Gezza

               /  6th August 2016

              o_O PPS: Well it might be, but not as perfect as 14 seconds @ 1100 w.

            • Corky

               /  6th August 2016

              No- I said they will probably be the same. That’s a supposition on my part.

            • Gezza

               /  6th August 2016

              I had to take one of those once. Worked too.

  2. Alan Wilkinson

     /  6th August 2016

    Regarding fact based science, it is worth noting judges have been shown no better than the general public at detecting lies.

    Reply
  3. A single Judge or a Judge plus two “experts” is a scary thought in such an emotionally charged atmosphere as a rape trial. That is far few people to be influenced by political pressure. And as we have seen the pressure brought to bear via the media can be extreme to act and punish. And not always based on the strongest of evidence.

    The selection of the “expert” panel, in particular, from which two could be drawn from for a particular trial would be totally open to political coercion. It would be a process run out of the public eye and will be subject to extreme lobbying… You can imagine who certain groups would want on such a panel…

    For all its supposed failings a jury trial offers some protection from political influence and also reflects society much more representatively than a single Judge or a Judge and two “experts”.

    Sexual violence is not OK and needs dealing to BUT the single Judge proposal is not a great idea in my view.

    Very supportive of low level offences being handled in outside of court processes

    Reply
    • Gezza

       /  6th August 2016

      BUT the single Judge proposal is not a great idea in my view.
      I agree that is a weakness. An alternative to two ‘lay’ persons might be to use two independent legal counsel.

      Reply
  4. artcroft

     /  6th August 2016

    I would want to know how you qualify to be an “expert”. Would your CV read:

    I spent 6 years at university studying feminist theology while deeply involved in student politics. Following this I built an extensive network of activist friends who are all politically vocal and support my application to be a trial expert. I would bring balance to any trial as I would correct for the inherently white male bias found in all court rooms. This gives me a unique, clear and unchallengeable grasp of the truth in difficult court cases such as these.

    Reply
    • Corky

       /  6th August 2016

      Two to the kneecaps. One to the mid section. And a finisher between the eyes. If all public servants received such scrutiny, Arty, most would bite the dust before being able to draw a taxpayer salary.

      Reply
  5. Alan Wilkinson

     /  6th August 2016

    The first duty of our justice system is to protect us from false accusations and wrongful imprisonment.

    That must never be forgotten in the desire to convict more offenders.

    Reply
  6. Kevin

     /  6th August 2016

    You don’t get any smarter than a Judge but where juries rein supreme is on deciding the facts and what actually happened. Where the facts are in dispute jury trial are indispensable.

    What I’d like to see is clarification with regards to intoxication and consent. To change the law so that if someone is intoxicated there cannot be consent is nanny-state in the extreme as well as thwart with problems (What if both parties are intoxicated? Does even a single glass of sherry count as intoxication?). But going the opposite direction presents problems as well.

    Reply
  7. Alan Wilkinson

     /  6th August 2016

    A comment worth repeating from Kiwiblog:

    Sporteone (117 comments) says:
    August 6th, 2016 at 2:32 pm
    As an ex cop who interviewed many women making a complaint of rape, I am surprised that no-one ever asks the question, ‘how many rape complaints are investigated which prove to be false’. I now hear all the women’s groups screaming. I interviewed 9 women in 22 years, of which 4 complaints were found to be false. That really annoyed me as this affected women who have genuinely been raped. Nothing happened to these women making false complaints, but it wrecked the lives of the males they complained about.

    If this new system is introduced, I am sure there will be more complaints before the courts with more victims and I am including the males as victims here.

    Yes rape is abhorrent but so is make a false complaint. It is very easy to make the complaint but very hard to disprove as some complaints are quite old. The recent case in the paper is a great example. The jury have obviously deliberated and found some aspect of the complaint to be wanting.

    In my current occupation I still see false rape complaints being made. In a recent case that went to court, the defendant was charged with a number of rape charges and was acquitted of them all. Once all the evidence was obtained, most of which was not disclosed by the Police and it was properly analysed, it was obvious the complaints were false. But alas nothing happened to the complainant.

    These sorts of cases are an ongoing problem and with the thorough scrutiny of the jury, I am sure there will be many men convicted of complaints that should have been investigated more thoroughly. Leave the system as it is. It is working and is robust.

    Reply

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