More on rape laws
July 25th, 2009 at 9:32 am by David FarrarThe Herald reports Simon Power has clarified:
Mr Power gave further details of his proposal yesterday, saying it was aimed at cases where the complainant’s relationship with the accused was raised. This would only happen if the judge gave prior permission.
I said yesterday I supported restrictions on questions about the complainant’s previous sexual relationships.
However I have to say I think it would be pretty dangerous to ban any evidence or questions about the actual history and relationship of the complainant and accused. This seems to me incredibly relevant – especially when a trial has consent as the only disputed fact.
Considering there are a significant number of false complaints made, this could lead to more innocent people going to jail. And I am reminded of the maxim better 100 guilty people go free, than one innocent person is jailed.
Related posts:
- More on false rape allegations
- False rape complaints
- A fake rape register
- Judge throws out rape case
July 25th, 2009 at 9:41 am
Yes, this proposal is stupid.
Law reform needs to be in exactly the opposite direction: the accused’s history should also be put before the jury instead of being hidden until it is wheeled out in front of the judge for sentencing.
Vote:July 25th, 2009 at 9:49 am
Alan – I agree – treating every crime that a person commits as a one off event is wrong. Once upon a time when sentences were very harsh (like death or transportation) for many crimes I guess there could be an argument for it, but not now.
Vote:July 25th, 2009 at 10:17 am
Law reform needs to be in exactly the opposite direction: the accused’s history should also be put before the jury instead of being hidden until it is wheeled out in front of the judge for sentencing.
Hmm – it feels right but as DPF says
And if you want to maintain that as the underlying philosophy of our judicial system – well then no.
It is also my opinion the balance against the defendant has tipped too far already in rape cases – sadly it is all to true that some arseholes misused the opportunity to challenge their accusers to humiliate them and intimidate them. But the credibility of both the accused and complainant need to be on display most especially in cases where it is a She said, He said” scenario.
Vote:July 25th, 2009 at 10:42 am
At the moment the accused has his cake and eat it – and more.
If defence lawyers want to be able to produced evidence concerning the alleged victim’s background, then the prosecution should be able to do similar to the accused.
With respect to consent, even if consent is given, the ‘victim’ should be in a fit condition (as seen by a resonable person) to give consent. Moreover an accused should not be able to claim intoxication for misinterpreting consent or similar.
Vote:July 25th, 2009 at 10:45 am
andrei, I just don’t think that is credible. If a person has a known history of particular and extreme behaviour it is entirely relevant to judging their credibility. Juries should be given credit for being able to make such judgments wisely.
IMO injustices are far, far more often due to juries being given insufficient or incorrect information (usually both) than being given too much information.
If you think otherwise, give us instances.
Vote:July 25th, 2009 at 10:51 am
This reminds me of the Bain trial/ Evidence Act bullshit all over again
Vote:Put ALL evidence in front of a jury and the judge can give them guidance on the contentious bits
July 25th, 2009 at 11:18 am
Alan I believe if there is a particular signature aspect to a previous crime where a conviction has been obtained as to the one under consideration it can be presented in evidence – for example the binding of a victim in a particular way.
What can’t be done is present the defendants entire criminal record ie say this defendant was convicted of rape in 1998. On the other hand my understanding is that if in 1998 he stupified his victim with chloroform that case and in this case the same thing happened here -well then it could possibly be put forward.
Some lawyer probably could elaborate, I’m not sure of the details
I have sympathy with your position, believe me, but the defendant is on trial for the latest offense not previous ones and there is a possibility he might be innocent of this one even though he has done something similar before.
Vote:July 25th, 2009 at 11:36 am
Andrei, the word you are looking for is propensity and it does allow for strikingly similar offences to be raised by the prosecution. That is there to fulfill the point that Alan makes, that if a person has offended in the same, or a very similar, way in the past, then that does become relevant to the determination.
And you are correct when you say that the balance is against the defendant in rape cases. It is, and more so than in other cases. The thing is that this is one area where juries are more likely to be robust (going on the UK evidence) and changes to get more convictions (for that is the intention, Power is being misleading when he talks about getting more complaints) have generally not worked.
Of course, the prosecutors will often argue that the most minor (or sometimes seemingly imagined) of similarities link an offence and ask the court for leave to bring propensity evidence. Prosecutors, after all, are just as willing to stretch the rulesas defence lawyers.
Peterwn: do I take it that you are saying that if a couple go out and get heavily intoxicated, and if one partner suggests or agrees to sex then, notwithstanding that consent, the other partner should refrain?
Vote:July 25th, 2009 at 12:17 pm
The feminazis successfully lobbied to have any guy up before the court for rape without any other evidence than that of the complainant unlike most other crimes where there is meant to be a prima facie case. It is no wonder the conviction rate is very low. They now want give the accused far less rights than even a child murderer where the onus is on the prosecution to prove the accused guilty not the other was around.
I say we should have on law for all regardless of whether the accused or the complaint is male or female. How can fathers expect any sort of justice in the Family Court while women get special treatment in the Criminal Court including lighter sentences for the same crime including murder?
I find it appalling that National is pandering to militant feminist groups instead of aiming one law for all.
Vote:July 25th, 2009 at 12:29 pm
Until the Police tell us the rate of false complaint has dropped below 80%… yes 80%, changing the law will convert some (perhaps many) of those false complaints into miscarriages of justice.
http://tvnz.co.nz/view/page/423466/602846
I thought Labour was ‘nanny state’, but I think I would rather the government was fucking with my electoral rights than my legal ones now that the implications are becoming clearer. The EFA didn’t actually fuck up anyone’s lives. The ‘Power’ reforms might though. Replace him with Finlayson.
Vote:July 25th, 2009 at 12:38 pm
F E Smith, I think Peterwn is arguing that all couples who have sex while intoxicated should both be convicted of rape since neither of them are able to give legal consent. The argument, of course, is b.s. The ultimate in irresponsibility.
Vote:July 25th, 2009 at 1:03 pm
F E Smith and Alan
“Peterwn: do I take it that you are saying that if a couple go out and get heavily intoxicated, and if one partner suggests or agrees to sex then, notwithstanding that consent, the other partner should refrain?”
Yes I am! You do not get behind the wheel when drunk, so you should not do an act with enormous potential implications while you are drunk.
In practice this is unlikely to be a problem where such a couple cohabit – this would generally shift evidential balance in the accused’s favour.
Vote:July 25th, 2009 at 1:11 pm
“so you should not do an act with enormous potential implications while you are drunk.”
Evading the issue. The question is not what “you” should do, it is when “you” should be convicted of rape. The law is not there is enforce your particular morality. It is there to prevent individuals harming each other. That doesn’t absolve said individuals from taking responsibility for their own wellbeing.
Vote:July 25th, 2009 at 1:54 pm
Peterwn: “In practice this is unlikely to be a problem where such a couple cohabit – this would generally shift evidential balance in the accused’s favour.”
What.. like flatmates… good one. And if you mean co-habit in a sexual relationship, well duh, thats inadmissible under Powers reform because it is prior sexual conduct with the accused.
Get your head out of the clouds Peterwn.
Vote:July 25th, 2009 at 2:29 pm
How about some guy like Johnny Cash who said he never went to bed with a ugly women but woke up with a few. I am sure there are plenty of guys that have had too much to drink who regrets what they did the night before. Should they be about to charge the woman. Woman should also be expected to accept a little personal responsibility. I am not taking about a sober guy who finds a woman who has passed out but two people who are both drinking.
Vote:July 25th, 2009 at 2:36 pm
Alan – it is not evading the issue. An unwanted pregnancy often causes significant harm, so I have no problems in seeing a very strong burden put on the ‘penetrator’ – it hopefully might give them the message to keep themselves under control.
Vote:July 25th, 2009 at 2:46 pm
louise nickerless poster child for the false rape allegation coalition, today has in the herald welcomed simon powers proposal to stop sexual history of rape complainant’s history.The headline read FORMER RAPE COMPLAINANT BACKS REVIEW…..How can someone be a FORMER RAPE COMPLAINANT????.With her history no wonder she wants it.And since her case was kicked out she should have been charged.The headline in the herald should have read FALSE COMPLAINANT BACKS REVIEW………..
Vote:July 25th, 2009 at 3:53 pm
That’s a vitally important maxim, DPF, and one that forms the underlying tenet of our system of justice.
So to have a Minister of Justice prepared to idly demolish it so he can look like a tough guy in the eyes of a handful of feminists and the knuckle-dragging “everyone charged is guilty” brigade places in danger every man (for it is usually men who end up in the dock) who might want to have sex with another person (i.e. pretty much all of them).
Why keep this buffoon in the job when Chris Finlayson, or even Simon Bridges, would likely perform much better? Surely the majority of Cabinet can’t secretly back the demolition, piece by piece, of our system of justice upon which Power has embarked?
Vote:July 25th, 2009 at 5:02 pm
peterwn, that’s an even more farcical argument than I thought you were trying to make.
If you want to send a message, use email not the law. But your message is so ridiculously one-sided it certainly isn’t worth sending or reading.
Vote:July 25th, 2009 at 6:40 pm
Chris Finlayson, Rex. Simon Bridges is an ex-prosecutor, and a young one with that. The thing about prosecutors who have no defence experience is they come to have a fervent belief in the Police and their cases, which is the worst thing any lawyer can do. You need someone in the job who has to deal with the police as a defence lawyer.
As an aside, it is always fun to watch those crown prosecutors who come to the defence bar as their illusions about the police are quickly deflated. I remember the first time one of my friends first watched a policeman perjure themselves- she was absolutely stunned. Hours later she was still saying “he lied, he lied”.
If you read Nigel Hampton’s occasional articles in the New Zealand Law Journal you will see that he makes the point that our prosecutors, especially the junior ones (which really is what Bridges is as he is still young in terms of his legal career), tend to forget that they are supposed to present their cases impartially and without striving for a conviction.
So I would prefer Chris Finlayson. He appears to be extremely capable and doesn’t seem to be given to the same populism that Power seems to be chasing. I would hate to think of the types of judges Power would appoint if he were A-G; probably all prosecutors, so that they could contrate on what Power seems to think judges are for: obtaining convictions for the Crown.
Peterwn: You are incorrect. That argument also applies if a husband and wife get intoxicated and have marital relations. In that case the husband also becomes guilty of rape and the wife becomes guilty of sexual violation. The marital or co-habitation relationship in no way shifts the balance in favour of the accused. And as Enersto points out (and a point I made yesterday on the earlier thread on this), your previous sexual relationship would become prima facie inadmissible so you can’t even allege that you had a sexual relationship without showing the judge it was so relevant that it should be admitted. That is a higher standard than normal. So, somehow I don’t think that your view will work.
Don’t forget everybody that in this case if a male makes a complaint about a female then she would need to positively prove consent also or go to prison for sexual violation! Now, very few men make complaints about this sort of thing so it, too, must be massively under-reported, even more so than rape.
Vote:July 25th, 2009 at 6:52 pm
F E Smith, during the Springbok tour confrontations I had the illuminating experience of having a police officer lie to me with what I can only describe as practised ease. He was also completely unconcerned that he was doing it in front of other officers. Moreover when I immediately refuted his lie he changed his story without a blink.
I can only believe that lying is considered a routine professional skill by a significant proportion of our police.
Vote:July 25th, 2009 at 7:49 pm
Losing the idealism as to the honesty of our police force has been one of the most unhappy parts of being a defence lawyer, Alan. It happens all too often. Sometimes the lies are documentary (in the form of altered, or occasionally completely fabricated, forms or statements) but mostly they are oral and are made to shore up a case or to deny wrongdoing on the part of the officer (like assaults on the defendant or intimidation of witnesses).
What really upsets me is that the police do nothing about it, even when they know it has happened, and the judges do nothing about it other than occasionally acquitting defendants when they realise what they have seen.
I have got used the the fact that witnesses on both sides of a case are willing to lie to get a result they consider favourable. Police are far better at it, mind you, as they get a lot more practice. However, you will always get it and often you won’t know it for sure, you will just suspect it. Often you do know but can’t prove it sufficiently to make the allegation. Then there the times you know for sure and you can prove it (a colleague has one of those cases coming up soon. I am seriously looking forward to it!) but those are like hen’s teeth. At least if you know your client is lying you can stand up and ask to withdraw. Most of our clients aren’t good liars, so it is easier to spot and I usually advise my clients to stay out of the witness box anyway.
Just for Kaya’s sake, can I say that I have never and will never knowingly allow a client or defence witness give perjured evidence. And I have never lied to a court and never will. It just isn’t worth it.
Vote:July 25th, 2009 at 8:20 pm
Aussie has a couple of cases running where the judges are saying, hey hang on a moment. This isn’t what it seems.
http://www.dailytelegraph.com.au/news/when-rape-isnt-actually-rape-outrage-at-judges-sex-assault-excuses/story-e6freuy9-1225753449620
http://www.news.com.au/couriermail/story/0,23739,25828847-952,00.html
And there is a third case which involves two very drunk people where the judge has an issue. someone may be able to find it as it was in the papers a couple of days ago.
Vote:Worth a read for those interested.
July 25th, 2009 at 8:22 pm
here it is.
http://www.news.com.au/adelaidenow/story/0,,25827350-5006336,00.html
Vote:July 25th, 2009 at 9:16 pm
F E Smith, not being an historian or a lawyer I hadn’t heard of your namesake before, but he had a lol wit.
Vote:July 25th, 2009 at 10:00 pm
A fantastic wit and a damned fine lawyer, Alan. If I can be half as good a lawyer and a quarter as witty I will be more than content with my career.
In case anybody is wondering, the real F E Smith eventually became the Earl of Birkenhead and Lord Chancellor of the United Kingdom of Great Britain and Ireland from 1919 to 1922. The biography of him by his son, the second Earl, is well worth a read.
Vote:July 25th, 2009 at 10:20 pm
F E – indeed your namesake ought to have a higher profile than some of his contemporaries. He’d leave Churchill in the shade for bons mot, for one.
I agree with you re Finlayson over Bridges but I threw his name in the hat on the basis that Finlayson may plead he has too much work and it seems anyone would be better than Power, whose belief that NZ’s courts are releasing scoundrels by the score and our prisons aren’t locking up the ones we do catch for nearly long enough seems to have arisen from the same level of intellectual rigour which caused Annette King to ascribe the whole thing to full moons.
Alan Wilkinson – I had much the same experience. Having been charged a couple of times and found resoundingly not guilty, part of me still wanted to believe it was all a terrible error. Till my business parter at the time of yet another charge (and who’d signed the same cheques over which I was being pilloried) asked why on earth I was in the dock yet again only to be told by a senior policeman “he’s got it coming”, quite openly and without a flicker of shame.
Vote:July 25th, 2009 at 10:34 pm
My father was a government analytical scientist very frequently called to give expert evidence for the prosecution. He was extremely conscientious and thorough and I realised quite young that he didn’t trust the police although he worked with them all the time. I was rather puzzled by that. I guess nothing has changed.
Vote:July 25th, 2009 at 11:25 pm
Kate Wilkinson is one that I had thought might become an associate Minister of Justice. I was surprised when she was given Labour. Having spoken with her on a few occasions I would be more than happy for her to take the position. She has had enough contact with those involved in criminal matters to be able to chart her own course on Justice matters.
As I said, Bridges is a prosecutor and his statement earlier this year about his opinion that a portion of his colleages are defrauding the legal aid system incline me to believe that he is remains very much a crown prosecutor in his view of the world. Sadly the situation in NZ has declined from years ago when prosecutors and defence lawyers were good friends and their day jobs were just that. It is very much a ‘them and us’ situation now in criminal law. In fact, in my area we get on far better with the police prosecutors than we ever do with the Crown. They are generally good people, those in the PPS.
Power has, I think, been house trained by Justice, although given his proposals prior to the election he might be a willing capture! It worries me because when I read the briefing papers and the discussion documents I see analysis and proposals by people who don’t appear to have ever practiced at the defence bar. I see that Power worked for Fitzherbert Rowe in Palmy North. They do criminal defence work but I don’t know how much time he spent doing that. If he was at Kensington Swan for a time then I presume he was mostly commercial in his focus.
Vote:July 26th, 2009 at 8:52 am
> I have no problems in seeing a very strong burden put on the ‘penetrator’.
As I’ve said before, having an erection is not the same thing as saying “yes”. If it did, many men would be saying yes when they woke up each morning.
What if the woman was in control when sex took place? Does that make a difference? Should men who have sex with a woman for the first time insist that they get on top?
Vote:July 26th, 2009 at 9:32 am
FES. Don’t complain. For far to long the system in NZ has been captured by those that earn the money and the femminists who help them. That we have a minister who wants to shake out the system is good and the debate will do good especially if it involves those that have been given a shit load of trouble because “they had it coming” or ” this will get me promoted to Deputy Commissioner “or” I have to look after my narks,” where others are given grief by a given policeman to do just that. ( am aware of someone in that situation right now. He has shifted from what has been his home for many years to the South Island just to get away from that policeman and hope that he can be left alone. Even his Barrister thinks the cops bad but what can anyone do. Independent Prosecutors Please.
Bridges is MP for this area and I agree with your summing up of him. He is light weight, has a singular point of view of the police and the system and worse as an MP has done nothing but go to school and become a prosecutor which leaves him with absolutely no world view, no balance of the human race for all he has done is deal with the bad bastards and the tricky.
I was castigated mightily for saying this when he was selected but that didn’t make it less true and so he was imposed over a much more rounded but colourful personality who actually knew how to get things done. Net result the housing and building businesses are handicapped by Heatley and Williamson. Neither of which have the faintest idea about what they are doing, indeed Williamson revealed he didn’t know the extent of the weathertight homes problem ( despite the biggest problem being in Auckland),and is currently still waiting on a report.I digress but suffice to say that National are in dire need of better performing Ministers.
I happen to rate Power as one of those. At least he is giving the system a shake and challenging the traditions, which is what a lot of law actually is and not necessarily for the right reasons nor for the 21st century.
A further item from Britain ;Their was more somewhere yesterday about the case but this is the verdict.
Businessman faces jail
Sunday, 26, Jul, 2009 7:39AM
A New Zealand businessman is facing jail time, after being convicted of sexually assaulting a drunken woman in London.
Investment banker Justin von Tunzelman, 38, has been found guilty of stripping and groping the woman after a boozy cocktail party.
Following the verdicts, the judge said other allegations about his past behaviour had come to the court’s attention.
Vote:July 26th, 2009 at 9:42 am
http://www.stuff.co.nz/national/crime/2674198/Kiwi-guilty-of-stripping-comatose-woman-in-London
Vote: