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.

 

Is ‘forced marriage’ bill necessary?

A Members Bill  “aims to crack down on forced marriages”, but how much of a problem is it trying to fix?

It is said to target ethnic groups such as Indians and Pacific Islanders but traditionally in New Zealand pressure to marry has come from Christians of European ethnicities.

National MP Jo Hayes had her Marriage (Court Consent to Marriage of Minors) Amendment Bill  bill drawn from the ballot last week.

This bill proposes that 16 and 17 year olds who wish to marry must apply to the court, and sets out how the court is to consider the application.

Getting courts involved in consent to get married looks like an unnecessary interference by the state unless it is addressing a real problem.

NZH: Marriage Amendment Bill in first reading to prevent forced underage marriages

National List MP Jo Hayes believes forced marriages between teenagers are “slowly creeping into New Zealand society” and that the problem exists primarily in Pacific and Asian communities, where parents can pressure a young girl into marrying an older man for financial security.

She said some young girls were treated like slaves once coerced into wedlock.

Hayes said the bill would sort out which marriages were between consenting teenagers and which were forced.

At present, the legal age to wed is 18, but 16 and 17 year olds can marry with their parents’ consent.

Is it actually a problem? And if so would court consent fix the problem? And if it’s a problem why have it for a limited age range?

“I think [the teenagers] do it for their parents sake. I think it’s hell on earth for some of them.”

Marriages and relationships entered into voluntarily are as likely to to turn bad, and probably do in far greater numbers.

The numbers of young people getting married has dropped significantly over the last half century.

Teenage marriages were more common in the 1970s. In 1971, a total of 285 boys and 2304 girls aged 16 and 17 were wed.

In the most recent data, for 2015, 12 boys and 36 girls were married aged 16 or 17. That was a slight increase on the previous year when 33 girls and 9 boys were wed.

I wonder what data, if any, Hayes has on the ethnicities involved in forced marriages.

Labour’s spokesman for Pacific Island Affairs, Su’a William Sio, said he had not heard of forced marriages happening in Pasifika communities.

“I’m not sure what she’s aiming at. Certainly in the Pacific community, look this is the 21st Century. That just doesn’t happen.”

Indian community leader Jeet Suchdev said forced marriages were not a problem he had observed.

He said he did not personally feel teenagers were mature enough to marry and believed most Indian parents in New Zealand would agree.

“Our tradition is to try and get a good education, after [that] they want to get married.”

There could be exceptions in any ethnic group.

Forced or pressured marriages were more common when giving birth ‘out of wedlock’ was frowned on by New Zealand society – and this was mostly a religious (Christian) pressure.

Anecdotally ‘shotgun marriages’ were common, with angry parents rushing their children to the alter to try to avoid family embarrassment.

A worse problem has been brought up again recently, where pregnant girls were hidden away (sent ‘up north’ for a few months) to give birth. And often forced to give their babies up for adoption. See Harrowing tales of ‘forced adoption’ amid call for inquiry.

That doesn’t happen any more, or at least I hope not. More liberal attitudes to de facto arrangements, sole parenting, contraception and abortion has changed things markedly.

I remember in the early seventies a girl sitting school certificate at school while pregnant – her family supported her being open about being pregnant, which was very unusual then.

In the late seventies I sort of pretended to be married when I moved town, it just seemed easier at the time to appear to conform. Now few care whether couples are legally married or not.

It seems like Labour may support the Hayes bill. Labour deputy leader Jacinda Ardern said…

…Labour would support any way to combat forced marriage. But sometimes marriages occurred outside the law.

“The marriage doesn’t have legal standing but it has religious standing. It’s the same consequences for these young women.

“You can put laws in place, but if people aren’t going to conduct ceremonies within the law then it become a blunt instrument.”

That seems to be sort of a yes, but acknowledges it doesn’t prevent non-legal forced marriages.

The Green Party have not yet decided their position as the bill is yet to go to their caucus.

If Labour supports the bill (and National block votes for it) then it doesn’t really matter whether any other parties back it or not as there would be plenty of votes.

Ardern said the Family and Whānau Violence Legislation Bill, which is before the select committee, has proposed a new offence for the coercion of marriage with a sentence to imprisonment for up to five years. This would cover marriages not governed by New Zealand law or those not legally binding.

“We’re very supportive of taking action.

So there is already a bill that tries to address any forced marriage problems. So why would we need another bill?

“People are surprised to hear forced marriage is an issue in New Zealand, but it absolutely is.”

But how much of a problem? And how can it best be addressed?

I’m very much against forced marriages of any type, but I’m not sure that requiring court consent for young people to marry is going to solve much if anything.

Young people could still be pressured into convincing the court that they are happy about getting married.

Or families could just wait until the person or people getting married are both 18 or older.

So I wonder how big a problem the Hayes bill is trying to address (the numbers suggest quite to very small), and how effective it would be.

I really question whether the ‘Court Consent to Marriage of Minors’ bill is one that has sufficient merit to add to our statutes.

Teenagers, alcohol and consent

There’s an interview with Dellabarca: Disturbing attitudes and comments not uncommon

A 20 year-old student, Jessica Dellabarca, says it’s not uncommon for teenage boys to take advantage of drunk girls at parties or boast about it online. She says boys need to be educated about consent.

All teenagers need to be educated about complexities of ‘consent’ in relation to sexual activity, and they also need to be better informed about the risks of drinking alcohol, and associating with others who are drinking alcohol.

One of the biggest problems seems to be an inherent lack of respect for others.

Using the term ‘rape culture’ is confronting and can be counter productive to reasoned discussion but there appears to be major problems with rights and responsibilities and lack of respect for the opposite sex.

“If you don’t take advantage of a drunk girl then you’re not a true WC boy” – just heard this on RNZ.

Also from RNZ: Rape comments happen ‘every single day’ – student

Boys talking about wanting to rape drunk girls can probably be heard every day in schools around the country, young women and sex education groups say.

This follows revelations of Facebook postings by two Wellington College students who posted offensive comments about having sex with drunk unconscious girls, and that doing this was a rite of passage.

Wellington College principal Roger Moses said the school was investigating and he was “appalled and disgusted” by the posts.

Mira O’Connor, who is in year 13 at Wellington High School, said a lot of her friends have had bad experiences.

“I would say it’s quite common, and I don’t think any of us are really surprised.

“Really shocked and disappointed that they’d say this, but not surprised.”

There should be a lot of shocked and disappointed people if this is common.

Yes, it’s possible to come up with stories about false complaints and bonkers remorse.

But they are only small parts of what appears to be, still, major and entrenched attitude problems, which when mixed with alcohol can cause a lot of grief.

Teenagers will want to have sex. Teenagers will want to drink alcohol. There’s no way of stopping them wanting either.

So there has to be more done to change attitudes to how both sex and alcohol are handled.

 

Minister could approve CBD as interim medicine

The use of cannabis oil (CBD) for treating difficult to deal with medical problems like epilepsy and seizures has been highlighted again by Family’s desperate quest for cannabis oil.

Metiria Turei (@metiria) reacted to this story on Twitter:

The law is an ass.

() has pointed out:

The law doesn’t actually need changing. The minister right now could simply give approval… if he/she wishes.

They link to the legislation:

Medicines Act 1981

23 Minister may give provisional consent
  • (1) Notwithstanding sections 20 to 22, the Minister may, by notice in the Gazette, in accordance with this section, give his provisional consent to the sale or supply or use of a new medicine where he is of the opinion that it is desirable that the medicine be sold, supplied, or used on a restricted basis for the treatment of a limited number of patients.

    (2) An application for the Minister’s provisional consent under this section shall—

    • (a) be made in accordance with paragraphs (b) and (ca) of section 21(1):

    • (b) be addressed to the Director-General:

    • (c) state, or be accompanied by a statement of, the particulars specified in paragraphs (a) to (h) of section 21(2):

    • (d) be determined by the Minister in accordance with section 22.

    (3) On giving his provisional consent under this section, the Minister may impose—

    • (a) such conditions relating to the persons to whom the medicine may be sold or supplied; or

    • (b) such conditions relating to the area in which the medicine may be distributed; or

    • (c) such other conditions, not being inconsistent with the purposes of this section,—

    as he thinks fit.

    (4) Subject to subsections (4A) and (5), every provisional consent given under this section shall have effect for 2 years or such shorter period as the Minister may determine, and shall then expire.

    (4A) The Minister may, by notice in the Gazette, from time to time renew any provisional consent given under this section for a period not exceeding 2 years on any one occasion.

    (4B) Subsections (3) and (5) shall apply to any renewal of a provisional consent given under subsection (4A) as if it were a provisional consent given under subsection (1).

    (5) If, during the currency of a provisional consent given in respect of any medicine, the Minister grants a consent under section 20 in respect of the same medicine, the provisional consent shall be deemed to be revoked.

@NZdrug:

The Act says minister… but because of delegations this sits with @PeterDunneMP

Applications for Minister’s consent

  • (1) Every application for the Minister’s consent under section 20 shall—

    • (b) be made in the true name of the manufacturer or importer or proprietor, or the proposed manufacturer or importer or proprietor, in New Zealand of the medicine, by that person or by his duly authorised agent:

Non-notified consents for exploratory drilling confirmed

Environment Minister Amy Adams has announced new non-notified consent regulations for off-shore exploratory drilling. This means that the public cannot oppose this drilling via the consents process.

Protest groups claim this is a removal of rights of the public to have a say, but Adams says the public never had a say and this changes puts better regulations and oversight in place.

New regulations for exploratory drilling

Activities involved in exploratory drilling for oil and gas will be classified as non-notified discretionary under new EEZ Act regulations, Environment Minister Amy Adams announced today.

“The non-notified discretionary classification is the pragmatic option for exploratory drilling, and will provide a level of regulation proportionate to its effects,” Ms Adams says.

“This is part of the National-led Government’s overhaul of the laws and regulations governing the oil and gas industry.

“The classification will provide effective oversight and environmental safeguards without burdening industry with excessive costs and timeframes.”

Radio NZ used an odd headline in their report on this – New rule reinforces public’s lack of say:

New regulations mean that the public will not be able to have a say on applications to explore for oil and gas in the country’s exclusive economic zone.

Similar negative spin was put on this by 3 News Kiwis ‘muzzled’ by oil drilling regulation and lead with protesters.

The government’s decision to exempt deep sea oil drilling applications from public resource consent hearings will muzzle New Zealanders who are concerned about the risks of a spill, the Green Party says.

And Greenpeace is accusing ministers of a being “little more than lackeys for the oil industry”.

The public were never able to have any say. It could more accurately be said these changes improves regulatory oversight.

Radio NZ:

Until now the drilling, which includes deep sea exploring that sparked ocean going protests from Cape Reinga to Dunedin, has been in a grey zone regulations-wise.

But now the Environmental Protection Agency will get to approve any applications and does not need to consult the public at all.

The public were never had to be consulted.

The public will only get a say if an oil company goes on to want to produce oil or gas.

Environment Minister Amy Adams says the EPA will have the power to scrutinise any application for exploratory drilling on the sea bed or continental shelf.

Amy Adams:

Now what that means is of course is that the regulator will have for the first time the full ability to consider the proposal, consider the location, the safeguards put in place around it, the methods of operation, and any effect it could have on ?? interests, and have the full discretion to say yes or no to that proposal, and also to put any conditions on it that are needed.

But in terms of it being non-notified, well the public has no say on them now and never has had,  and so you know I think that’s left out of this debate. People are talking as if the ability to feed in this is removed.

There has never been a process for the public to have their say on exploratory drilling, and there’s never been a process for  any regulator oversight.

Now we say that’s not good enough, and actually we want there to be very full robust consideration of the proposal, but the reality is that every day around New Zealand we have regulators in all sorts of fields making any number of decisions, the vast majority of which are not full public processes that are made by the regulators on the application in front of them and their own expert analysis of it.

It’s far the minority of times where there are processes that need to go through that full public debate.

RNZ: “Amy Adams insists the public can put it’s trust in the Environmental Protection Authority to limit the risks.

Adams: I know the EPA are going through a huge effort to ensure that they provide a very very robust and careful analysis. 

And yes there are risks in these proposals, but the best information I have seen suggests that risk is well under one percent, probably in the order of 0.2%  chance of there being a loss of control event, and the reality is that’s far less than the risk of the sort of activities like flying claims and the like that we have our regulators sign off all the time, and we don’t suggest that there should be a full public process on, you know, civil aviation consideration of whether the planes are fit to fly and the like, because it really is, the important thing is the proper technical consideration of the management of that risk.

Public consultation is often used as a means of opposing and trying to prevent controversial things from happening.

There are groups that oppose all off-shore drilling and if public consultation was allowed they would be likely to use any and all means to delay and prevent anything from happening. That’s what they are really complaining about.