New court rules for rape cases

NZ Herald – Courtroom shake up: New rules in rape cases hailed as decades-overdue

A woman’s sexual history or how she dresses will be out of bounds in future court cases under a raft of reforms designed to protect victims from being unfairly treated and retraumatised.

Such information, called “rape myths” by survivor advocacy groups, will only be admissible in a court if the judge deems it should be, and if not doing so would impede the course of justice.

The new rules about rape cases in court are contained in the Sexual Violence Legislation bill, which will have its first reading in Parliament today and is expected to become law early next year.

The bill seeks to maintain fair trial rights while improving the court experience, which complainants have described as retraumatising, hostile, and a compelling factor in deterring victims from coming forward at all.

An estimated one in four women and one in seven people experience sexual violence in their lifetime, but most cases are unreported, and of those reported to police, only a third go to court and one in 10 end in convictions.

Justice Minister Andrew Little said he hoped the bill would eventually encourage more complainants to come forward, though it was difficult to say if it would have any effect on conviction rates.

The bill would:

  • See more alternative ways to give evidence – such as via video conference or in a cleared courtroom – to protect complainants appearing in front of the accused or the accused’s supporters.
  • Protect complainants from unduly invasive questioning, such as questions about sexual history or choice of clothing; relevant details would be established before a complainant is questioned. A judge would also be required to direct the jury to ignore rape myths.
  • Require a judge to intervene in inappropriate lines of questioning, such as ones that are improper, unfair, misleading, or needlessly repetitive.
  • Allow a survivor to give an victim impact statement to a courtroom cleared of the public.

Justice Under-Secretary and Green MP Jan Logie said the myths about rape – including sexual history and a complainant’s choice of clothing – unduly influenced court cases.

“You can consent to sexual activity with somebody at a particular time and not at another. Consenting the first time does not automatically [mean] you have consented the second time. Choice matters.”

What someone was wearing or doing in thee past, even the recent past, has no bearing on consent or lack thereof  at the time of an alleged rape. And as Logie says, prior consent does not mean ongoing current consent.

Rape cases that argue consent can be tricky when there are only two witnesses, the accused and the complainant. But I think that it is fair to assume no consent unless it is clear that consent has been given.

Chief Victims’ Adviser Kim McGregor said that cross-examination was the most destructive and distressing part of the court process, and better protections for complainants were long overdue.

“I have heard from those who feel broken, humiliated and worn down after hours and sometimes days of repeated questioning.”

She said complainants accepted that evidence needed to be tested, but will welcome the changes in the bill that would disarm the process of hostility.

Wellington Women Lawyers’ Association convener Steph Dyhrberg said it was important to require judges to direct juries about the misconceptions around rape.

“The general public is remarkably ill-informed about the realities of sexual violence and how survivors experience it and behave. Those assumptions and prejudices and misinformation, jurors take into the courtroom and jury room.”

Perhaps lawyers need to be educated on the realities of sexual violence. And if they stray in defence of an alleged rapist thee judge should be able to stop them from unfair questioning.

This was echoed by Wellington Rape Crisis agency manager Kyla Rayner.

“We don’t want to see the continuation of discrediting survivors’ experiences or colouring outcomes with rape myths.”

Questions to witnesses should be respectful, relevant and fair, and she said it was appropriate to require a judge to intervene when questions were improper, or even harmful.

Wellington Sexual Abuse Help foundation chief executive Conor Twyford said a person’s sexual disposition should never be considered as evidence against them.

“Survivors have a right not to have their sexual history used against them, full stop.

“A person’s prior sexual activity should have no bearing on the case at hand.”

For sure.

If someone is the innocent victim of a car accident their past driving record isn’t relevant either.

Logie said the bill was the first phase of change.

The second stage would look at the nature of consent, the role of juries, and alternative process including an inquisitorial system that, for example, focuses more on fact-finding than challenging evidence under cross-examination.

She said the current system was so poor at the moment that people working in the system have said they wouldn’t advise their own family members to lay complaints.

A sad reality of our current legal system.

This sounds like very good (and yes, long overdue) reform.

And I agree that Jan Logie has stepped up very well as a Minister – I admit I wasn’t a fan of hers when she was an Opposition MP, but she has switched to the responsibilities of being a Minister in Government and has generally done a very good job promoting the resolution of important issues effectively. This is one example of her effectiveness.

 

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12 Comments

  1. Alan Wilkinson

     /  15th November 2019

    Doesn’t seem to address the problem that most consent is non-verbal. Presuming otherwise is unrealistic.

    Reply
    • There’s certainly problems round consent – yes, most consent is noon-verbal.

      But there are some clear situations on lack of consent, for example where the victim is not capable of giving consent (asleep or drunk or drugged). And when the victim says no or makes it clear they are not consenting (even if verbal or implied consent has previously been given).

      Reply
      • NOEL

         /  15th November 2019

        Hopefully the next generation will have had sufficient education via the curriculum to know what is consent and what is not.

        Reply
        • Kitty Catkin

           /  15th November 2019

          One would imagine that sex is something that both parties decide to do and not something that one (the man) does to another in most cases. Consent in this situation doesn’t come into it. It just happens.

          I don’t think that lawyers generally are so stupid that they can’t tell when someone has been forcefully raped. But proof is needed of all crimes.

          The problem with a blanket assumption that the accuser is always to be believed is that it would be against ‘innocent until proved guilty’ which is enshrined in law.

          A man in the UK narrowly escaped being wrongfully imprisoned when texts were found from his accuser which showed that he wasn’t guilty.

          Reply
    • As Jan Logie points out prior consent doesn’t mean ongoing consent.

      Consent might be non-verbal, but the moment consent is withdrawn is a different matter: “stop”, “please don’t do that”, etc. That’s when rape or attempted rape becomes a problem.

      Reply
      • Kitty Catkin

         /  15th November 2019

        Of course. That’s not in dispute.

        But there have been cases where false allegations have resulted in someone going to prison like the Hamilton university student who was accused by a fellow student to see if it was possible to have someone convicted on someone else’s say-so. They knew each other socially, but he wasn’t even in the hostel on the night when he was supposed to have raped her. There had been no relationship of any kind. The whole thing was invented, and there was, of course, no evidence of any kind.

        A spokeswoman for Rape Crisis excused the accuser by saying that even if the wrongly accused hadn’t done it, someone must have done something to her at some time. She seemed to see nothing wrong with an innocent man being vilified as a rapist, having posters put around the university calling him one, and being imprisoned for a crime that had never happened.

        Reply
        • Kitty Catkin

           /  15th November 2019

          I wonder if the PDTs would think it acceptable if they or a family member were accused falsely, had their name and face on a poster that said that they were a rapist and ended up in court or even prison on someone’s say-so with no evidence produced because there was none to produce as the crime didn’t happen.

          Reply
          • Those are remarkably misogynistic comments, Kitty, and not dissimilar to the ones Christine Blasey Ford endured when she stepped forward to accuse Brett Kavanaugh of sexual assault.

            You characterise rape victims and their supporters as whiny and vindictive, and paint them with all sorts of reductive sexist stereotypes. But false allegations of rape are few and far between, consisting of a small percentage of rape claims, and a minuscule percentage of all rapes.

            Only 9% of sexual violence cases in New Zealand are ever reported to the police.

            In only half of those 9% is the perpetrator identified

            And only a third of those cases with an identified perpetrator progress to prosecution

            Of that third of the cases that progress to prosecution less than half result in a conviction.

            Genuinely false accusations account for roughly 2% of those prosecuted cases.

            Don’t take my word for the facts. Talk to the Police and find out for yourself.

            In the face of your misogynistic characterisations, it’s important to understand that false allegations are not the issue you paint them to be. The moment consent is withdrawn is the real issue: “stop”, “please don’t do that”, etc. That’s when rape or attempted rape becomes a problem.

            Reply
            • Pink David

               /  16th November 2019

              “it’s important to understand that false allegations are not the issue you paint them to be. ”

              Tell that to Peter Ellis.

            • Pink David

               /  16th November 2019

              “But false allegations of rape are few and far between, consisting of a small percentage of rape claims, and a minuscule percentage of all rapes.”

              This is untrue. Research on this is extensive, and also varies wildly from 2% to 90% of rape claims as being false. The NZ research (Jordan (2004)), had false claims at 41% of allegations.

              “Those are remarkably misogynistic comments, Kitty, and not dissimilar to the ones Christine Blasey Ford endured when she stepped forward to accuse Brett Kavanaugh of sexual assault.”

              Given Ford made a false allegation, along with 3 others, does this rather prove the point?

      • Alan Wilkinson

         /  16th November 2019

        What are you going to do when the complainant claims to have been too incapacitated by mental or physical state to withdraw consent verbally? Assume the perpetrator is a mind-reader? And how can you decide who is telling the truth when their evidence conflicts and no other is available? Just go with the best performer or believe all women?

        Reply
  2. Blazer

     /  16th November 2019

    whats the penalty for making false allegations that destroy someone’s reputation…these days?

    Reply

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