Power’s Reforms
July 24th, 2009 at 10:06 am by David FarrarThe Herald reports:
The sexual history of rape-case complainants may no longer be able to be raked over by defence lawyers in potentially far-reaching reforms proposed by Justice Minister Simon Power.
He is considering making evidence about a complainant’s previous sexual relationships inadmissible without the agreement of the trial judge.
I am broadly supportive of such a move, but have to admit I thought there already were restrictions on such details being detailed in court? One of our friendly defence lawyers want to clarify.
There are some occasions where past relationships could be material. If for example a complainant said she did not consent as it was their first date, and she would never sleep with someone the day she met them – then evidence that she is lying and has had a one night stand before would be relevant. But only because it is contradicting a claim she made. If she made no such claim, then I would say it is not relevant how many one night stands a complainant may have had.
Mr Power said rather than the complainant being ambushed in court with cross-examination about her past, a judge should first rule on its relevancy.
Which seems sensible.
He also proposes changing the definition of consent so someone would have to say “yes”, rather than the current law where a defendant is able to argue the woman did not say “no”.
Here I have to say, the proposal is impractical. Power isn’t exactly proposing this change – more just floating the possibility. But I think consent is often implicit, not explicit, based on how someone responds to you. I think Canada may have gone down this path, but to me it reeks of almost having to sign a statutory declaration of consent before sex.
Mr Power has also asked the Law Commission to investigate introducing a European-style inquisitorial justice system in sexual offending cases.
He said using such as system – where the judge is involved in collecting and determining the facts of the case – instead of the adversarial system that required “harrowing” cross-examination of victims was “worth a look”.
Fairly openminded on this. Fair to say though a high level of persuasion would be needed to change from the current system.
Mr Power says alcohol – a “facilitator” for crime – has to be dealt with if the Government is to have any impact on the crime rate. He says this will be done in one package of law reform this parliamentary term and will take into account the ongoing work of the Law Commission. It has already suggested limiting the opening hours of liquor shops and bars, raising the drinking age to 19 or 20 and increasing tax on alcohol.
I hope his comments do not mean the Government will just automatically legislate whatever the Law Commission recommends. The quality and relevance of the research they have used to date in citing the need for change has been seriously lacking.
Simon also announced his views on the provocation partial defence, which I will deal with in another post. His speech is online here and is a very good read. I’m incredibly impressed by the pace of work by Simon – he has achieved a lot in six months and by the end of his first term, will have a huge amount of law reform behind him.
On a final note did anyone else see Valerie Morse on TV last night holding up a sign calling for all prisons to be abolished at Simon’s speech. I’d like to ask Valerie what she thinks should happen to Clayton Weatherston and Graeme Burton. I guess she’ll just claims they are victims of the colonialist capitalist oppressors.
Related posts:
- Hopeful common sense on youth drinking
- More on rape laws
- Power against raising drinking age
- Public Forum on Alcohol Reforms
July 24th, 2009 at 10:23 am
Valerie Morse? Where have I heard that name before? Wasn’t she one of the Urewera conspirators? You must remember them. They were the home grown terrorists running around undergoing explosives and fire arms training while they plotted to bump off the man who is now our most popular and successful Prime Minister in twenty years. Those terrorists who should have been charged under anti terrorist legislation enacted by the Clark/Cullen gang but which was so fatally flawed that the Solicitor General had to recommend no charges be brought?
Is that the same Valerie Morse, David?
Vote:July 24th, 2009 at 10:26 am
There is a hilarious scene in the cult classic film Cherry 2000 where (in a post-nuclear war US) lawyers negotiate contracts between people who want to go out on a date, specifying under what circumstances sex will be allowed etc.
There is a trailer on YouTube that shows this scene: http://www.youtube.com/watch?v=kckEEQKXaCU
I agree that an explicit verbal “yes” would be a silly requirement, though I sympathise with what Mr Power wants to achieve.
I remember a friend relaying to me the comment of a law professor who was asked whether, if accused of a crime, he would prefer being tried under the adversarial or inquisitorial system. He replied that it would depend whether he was guilty or innocent. If the former he would prefer our adversarial system.
I agree that it is worth looking at this, though we should move cautiously.
Vote:July 24th, 2009 at 10:32 am
I’m starting to get the impression power is a populist who talks without thinking things through.
I’m not convinced a portfolio like Justice suits a minister with those attributes.
Vote:July 24th, 2009 at 10:33 am
DPF, your memory is correct, that is already the law and I don’t know why Power brought it up. Defence counsel are already watched like a hawk by the judge in sexual violation cases, as with all cases, to ensure that the Evidence Act is fully complied with.
The positive consent for rape concerns me. While this point is always downplayed by those who support the idea, how do you prove that your partner actually said yes? If you say he/she did and he/she says they didn’t, who do you believe? In NZ the jury may well go with the complainant on this, having seen the reaction when other juries have acquitted i.e. Rickards et al. The idea of a consent form prior to sex would be the safest way to go, whether it is casual sex or with a spouse/partner. That said, I was reminded yesterday at Court that a tightening has happened in the UK and juries are still acquitting at the same rate, so I suspect the Government may not achieve its aims there.
That said, the aims Power mentioned are to increase reporting of rape, which is ESTIMATED at 10% of all rapes. We don’t know that for sure, it is a guess. I fail to see how these ideas will improve reporting of a crime that may or may not be under-reported by a significant amount. What I do know is that a rape is tougher to defend than a murder. I hate working on them and would rather do anything else. As defence, we seem to get blamed by everybody for condoning the crime. Well, whatever.
However, this is one where I have seen men I believe to be innocent go to prison on the say-so of one person, with no forensic evidence.
Re inquisitorial judges: I made the point on an earlier thread that such a role does not apply to the trial, but to the collection of evidence. Once an accused is to be tried, the matter is heard by a different judge and a jury. In addition, the complainant can still be cross examined by defence counsel. I really don’t see how this will change things at all. The complainant in a sexual violation case is already excused from deps (which now don’t exist, but they won’t be able to be subject to an oral evidence order either). So the only time that a complainant speaks about the alleged incident is in the police interview and at trial. I fail to see what else can be done- perhaps exempt them from trial as well so that they cannot be cross-examined? Or only allow the judge to ask questions? A lot of our judges were not criminal lawyers (prosecution or defence) and aren’t necessarily as skilled in questioning witnesses as counsel.
Alcohol is a real factor in a great deal of crime, especially violent crime both domestic and street violence. I don’t know what can be done about that and don’t pretend to have any suggestions, other than to suggest that this appears to be a real problem in the English speaking world and perhaps we should look at Europe to see what they do differently. Those with more experience of Europe than I may be able to comment as to whether that idea has any merit.
Nigel: You are 100% correct. That is now my view too.
[DPF: Maybe the change Power is promoting for evidence of past sexual relationships is the Judge's permission but be gained in advance - not just during testimony?]
Vote:July 24th, 2009 at 10:35 am
I agree that Power is looking very good, he isn’t getting everything right but he certainly seems on the right track at the right speed.
Vote:July 24th, 2009 at 10:44 am
Also in that speech was the following:
“Without wanting to prejudge the outcome of the review, I do think we should consider whether or not services should be funded directly to clients, or to an organisation that would do the work as a matter of course.”
and then he says:
“I accept that any fundamental changes that result from this reform of the court system will encounter some resistance from those who work within the system.
I would merely ask them to put aside their institutional interests and consider if the justice system works from the perspective of those who it is intended to serve.”
So I have two questions on that: Does that appear to signal that he would like publicly funded defence work (i.e. legal aid) to be solely the province of the Public Defender?
And, if that is the case, then do we also put prosecutions in the hands of a Crown Prosecution Service and out of the hands of the Crown Solicitor’s firms, who, just like private legal aid providers, undertake criminal (prosecution) work in order to make a profit?
Vote:July 24th, 2009 at 10:50 am
re Valerie Morse – perhaps she is hoping for prisons to be abolished before the Urewera However-many go to trial
Vote:July 24th, 2009 at 10:54 am
Just on the inqusitorial process:
http://business.timesonline.co.uk/tol/business/law/article700775.ece
http://www.timesonline.co.uk/tol/news/world/article433525.ece
note that the second of those talks about a call for France to go to an adversarial system!
I will update my point above- the French system does not allow cross-examination by defence in all circumstances. Other civil law jurisdictions do, and some even have a combined judge panel and jury.
And see this also:
http://business.timesonline.co.uk/tol/business/law/article524867.ece
I think that we have an idealistic view that the grass is greener on the other side of the fence before we actually go there.
Vote:July 24th, 2009 at 10:56 am
The problem here is that the charge of Rape is a very serious charge indeed and given the current legal definitions it is sometimes ambiguous whether or not a particular incident is rape. Haven’t we been subjected to trials in recent times of historic rape charges which have divided public opinion as to the merit of the case
And if you want to destroy a man that is how you do it. Just this week we have had a case thrown out of court where a man was alleged to have sold his daughter for sex in a parking lot. Really the credibility of the complainant must be examined in order to determine the credibility of the charge.
Actually there is only one sound solution to all of this – make sex outside of marriage a criminal offense, then their would be little ambiguity (although some would remain) over the issue of consent.
Vote:July 24th, 2009 at 10:59 am
Re Adolf’s query about Valerie Morse at 10.23.
She was one of the Urewera 17. Morse is famous also for her strip-naked protest about genetic engineering, for burning the NZ flag, and for disrupting Anzac services.
Some backround links (and Loudon’s NewZeal blog is bound to have featured her, too).
http://www.scoop.co.nz/stories/HL0711/S00020.htm
http://www.salient.org.nz/features/valerie-morse-rebel-without-a-pause
The TV journos who gave Morse time to comment on prisons are either abysmally ignorant or of the far-leftist, peacenik persuasion.
Vote:July 24th, 2009 at 11:09 am
Just to get some perspective..
In the past 12 months there were about 117,000 notifications of child abuse or neglect. The police prosecuted only a dozen or so.
If rape is even remotely like child abuse, then its likely that the so called vastly under reported cases are of negligible interest to the police.
Similarly, I’ve bookmarked a number of cases about false rape in NZ plus police comment. Depending on time and place, the police report that false rape complaints run between 30-75%. In Christchurch, about three quarters of all rape complaints made over a weekend are withdraw early the following week. Other police officers are regularly reported venting their frustration at the time taken up with false complaints.
One of the under reported thrusts of Dame Elias speech was that sentencing has become obsessed with victims, not justice.
Put all this together and Power seems to be scratching a victim itch wrt rape. I simply don’t trust that.
JC
Vote:July 24th, 2009 at 11:34 am
When is rape truly rape? This article by Andrew Bolt shows how confused the situation is in Aus.
Vote:http://www.news.com.au/heraldsun/story/0,21985,25825941-5000117,00.html
July 24th, 2009 at 11:38 am
Well yes it does seem as though one cannot bring up previous sexual experiences without the judge’s permission.
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10586341
Evidence Act:
44 Evidence of sexual experience of complainants in sexual cases
(1) In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.
(2) In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.
(3) In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.
DPF also states: “But I think consent is often implicit, not explicit, based on how someone responds to you. I think Canada may have gone down this path, but to me it reeks of almost having to sign a statutory declaration of consent before sex”.
This was entirely my take on it when I first read Hon Simon Power’s comments. I would hazard a guess that 99% of sexual encounters have implicit rather than explicit consent. Indeed changes of this nature could lead to what is clearly consensual sex that one partner regrets could be taken to court as rape because the other partner had not explicitly said “yes you can have sex with me” despite being happy to and actively take part in the encounter. Naturally that is a worst case scenario.
Vote:July 24th, 2009 at 11:40 am
LOL, Power got owned.
Vote:July 24th, 2009 at 11:58 am
I did actually notice that Abolish all prisons sign on TV though I had no idea who it was holding it up. I assumed it was just another bleeding heart moonbat with a distorted view of reality.
Vote:July 24th, 2009 at 12:14 pm
I’d like to ask Valerie what she thinks should happen to Clayton Weatherston and Graeme Burton. I guess she’ll just claims they are victims of the colonialist capitalist oppressors.
I understand there are a few spare cages at Gitmo.
Vote:July 24th, 2009 at 12:27 pm
I’m starting to get the impression power is a populist who talks without thinking things through.
So he’s a populist knee jerker when he proposes a law change so soon after the Weatherston trial – yet if he did nothing he would be accussed of ignoring the public will.
Damned if you do, damned if you don’t.
Vote:July 24th, 2009 at 12:52 pm
David, what Power said was “Making evidence about previous sexual relationships between the complainant and any person inadmissible without prior agreement of the judge”. That doesn’t seem to suggest that it should be sought prior to trial, but simply suggested as a general rule.
In practice, the judge’s permission is usually sought prior to cross-examination. Often you won’t know if it the issue actually relevant to your defence until after the complainant has given evidence-in-chief. You will have an idea beforehand, but it won’t be certain, and you get criticised if you take up court time on something that might happen rather than what will happen. Once permission is sought the Prosecution will almost always oppose it and there will be a legal argument on it and then a ruling by the judge.
The bar for admitting the prior history of the complainant is extremely high. Judges are very cautious about allowing it in. Moreover, the sexual history of the complainant is often not relevant. The number of times it is sought to be used in a rape trial is, in my experience and in discussion with colleagues, low.
Edit: that said, there are times when it will only become relevant during cross-examination. Trials are often a moveable feast and you need to be prepared for anything.
Vote:July 24th, 2009 at 1:00 pm
Knee. Jerk. And whilst he’s at it he’s trying to fix a problem that’s already been fixed.
Can anyone tell me where the 10% reporting figure is from?
Vote:July 24th, 2009 at 1:45 pm
The Nats are amazing – they have already fixed the problem before anyone knew it was broken.
Vote:July 24th, 2009 at 1:50 pm
> Can anyone tell me where the 10% reporting figure is from?
Yes, it comes from the likes of Dr Kim McGregor and Jan Jordan, advocates for rape victims. These “experts”, and I use the term loosely, have plucked this figure out of the air. But they and others have used it so often that it has been adopted by the media without any critical analysis. As F E Smith has said, we simply don’t know what the real figure is.
As for Power’s claim that sex has to be consented to with a “yes”, it is a monumentally stupid idea. What will happen if there’s no explicit consent that sex is to take place between a couple? Well, the woman could later complain that she didn’t say yes to sex. But equally, presumably, the guy could complain to police that he didn’t say yes either. (Please note Mr Power: having an erection is not the same as saying yes!). So we could find ourselves with situations in which both the male and female are complaining to police that neither one said yes.
Vote:July 24th, 2009 at 1:53 pm
Maybe a journalist will be good enough to ask Power (and his wife) whether he (or she) ever says “yes” before having sex.
Vote:July 24th, 2009 at 2:07 pm
The gross over reporting of criminal cases in NZ is getting tedious. The effect of this is that we are getting quick fire, knee jerk responses from politicians before they have a chance to think things through. Generally his (Power’s) comments are well thought out but coming out the day after a high profile trial makes him look popularist.
Vote:July 24th, 2009 at 2:12 pm
Ross – thanks. I was afraid of that. So heading towards the ‘all sex is rape’ type mentality?
The reality is that there is no easy answer. In fact I doubt there is an answer. I am aware that rape victims can be slow to report due to the trauma of the event and sadly the longer they delay the harder it is to secure a conviction. Equally, there are numerous examples of rape being cried without merit. It is an easy allegation to make and given how seriously the crime is (rightly) taken such an allegation is treated very seriously to the detriment of the accused. Now that’s not a big problem if the accused did it but doesn’t help the falsely accused very much.
To change the definition will secure more convictions. It will also result in more innocent people getting locked up.
However the propsed change is spun the result is a change in the onus. Before the crown had to prove an accused guilty beyond a reasonable doubt. Now if the crown can prove sex the accused as to prove, assumably on the balance of probabilities, that they had consent.
Sounds pretty close to all sex is rape theory to me.
Someone needs to sit Simon down and explain to him the social contract between the governed and the governing. Although, as someone noted above, it is not all his fault. Ironic how 100s of years of constitutional evolution lead to a relatively free and democratic country and then the public exercises that democratic freedom to vote away (either at the ballot box or through ‘public opinion’) those very freedoms.
Vote:July 24th, 2009 at 2:30 pm
I agree with those who think Power has lost it – I’m afraid power has gone to his head.
There is no sense in doing things quickly if they are stupid things.
In my opinion the justice system is in need of major overhaul but it must be carefully thought out and planned. There needs to be a proper review by a small panel of very smart people representing law, business and bureaucracy – preferably led by business innovators. That should set up a basis for continuing reform and improvement.
Vote:July 24th, 2009 at 2:40 pm
Bevan – If it was one comment, then sure, but it’s three knee jerk reactions in a row now, Elias, Wetherspoon & now rape. He needs to be let go & have the conversation go back to where it belongs the economy & productivity.
Vote:July 24th, 2009 at 2:41 pm
“Maybe a journalist will be good enough to ask Power (and his wife) whether he (or she) ever says “yes” before having sex.”
Or during.
Vote:July 24th, 2009 at 2:44 pm
Now let me just start by saying that rape is a terrible crime.
Having said that, is not falsely accusing [generally] a man of rape as much of a crime, and perhaps even a greater crime, than rape itself? My concern is that, generally, the accusation of rape can be brought with little, or no, consequence to the one bringing the complaint. Of course the fallout to the accused can remain with him for the duration of his life, and can hang like a pall, even if it is proved, and is admitted, that the complainant lied.
My question is this: Do people here believe that if a woman [in general] brings a false accusation of rape against a man [in general], and it is then proved that she, with full knowledge, lied about the rape, should she face the same ‘penalty’ as would have been measured out to the accused had he been found guilty [of rape]?
Vote:July 24th, 2009 at 2:46 pm
“The gross over reporting of criminal cases in NZ is getting tedious. ”
That’s because bugger all else happens in this country to fill the papers, unless of course you consider overt demonstrations of readers’ utter pig-ignorance a la Sideswipe, or perhaps an All Black farting, to be a valuable addition to the public’s knowledge of current affairs?
Vote:July 24th, 2009 at 2:54 pm
Then you have Islamic sharia law.
Vote:July 24th, 2009 at 3:06 pm
Andrei, the issue of positively proving consent would arise even if you were married. Simply being married to the complainant would not be sufficient to prove he/she consented. Moreover, you would be barred from bringing any evidence of previous sexual encounters within the marriage as evidence in your defence without getting leave of the judge. If you do not have written (or videotaped
) consent to the sexual encounter then you are at risk of an accusation in years to come.
Once the onus of proof is on the accused then the likelihood of miscarriages of justice increase markedly.
Vote:July 24th, 2009 at 3:24 pm
Trout pointed to this
I find this interesting. A drunken woman is not repsonsible for her actions, but a drunken man is? I thoguht that sort of sexist thinking was so 20th century.
Vote:July 24th, 2009 at 3:31 pm
Brian Smaller (1351) Vote: 0 0 Says:
July 24th, 2009 at 2:54 pm
Actually there is only one sound solution to all of this – make sex outside of marriage a criminal offense, then their would be little ambiguity (although some would remain) over the issue of consent.
Then you have Islamic sharia law.
Well, that’s a good idea.
Here you have 15o women being flogged for having sex while men get off because they simply deny having sex. And get this enlightened quote:
“As to why fewer men were prosecuted, he said: “A man, after making this problem, will go away and maybe the woman will have relations with more than one man and won’t know who was responsible. Or the man denies it.”
http://www.independent.co.uk/news/world/asia/150-women-face-adultery-flogging-on-maldives-1757150.html
Vote:July 24th, 2009 at 3:39 pm
You do understand that my comment was tongue in cheek?
F E Smith as I recall until relatively recently it was the case being married implied consent and that the law was changed to allow for the possibility for rape within the context of marriage.
But then again in some quarters all sex is rape.
Perhaps you could design a bullet proof consent form to be signed by all parties
Vote:participating in a sexual encounter which duly notarized before any sexual activity takes place that could be presented to the court in case of a rape allegation.
July 24th, 2009 at 3:54 pm
Given the previously noted predeliction of the media for salivating for days over any crime news to pad the gaps between stories about a newsreader’s change of hairdo and hourly updates on a cricketer’s sore finger, I’d have been astounded to find any moderately intelligent and aware person who didn’t know that a rape complainant’s past is pretty much a no go area already.
But someone who’s aspired to, and finally become, Minister of Justice?!
As Nigel says:
I think the only reason he’s surviving without being laughed off the political stage is that his opposition, Lianne Dalziel, is no better.
Vote:July 24th, 2009 at 3:54 pm
I find this interesting. A drunken woman is not repsonsible for her actions, but a drunken man is? I thoguht that sort of sexist thinking was so 20th century.
It’ll take another 90 or so years to get used to being in the 21st. Give us a break!
Vote:July 24th, 2009 at 3:56 pm
FES: very, very good point about allowing the prosecution of cases by private firms on legal aid but requiring a government institituon provide defence services. It seems to cut across the equality of arms principles that underpin the Bill of Rights Act.
And the pink elephant in the room is the rate of ‘false reporting’ which the Police refuse to disclose, but which lawyers, police and researchers all know runs at around 80%… yes 80%. Now, it needs to be noted that the Police definition of a ‘false’ report does not mean that the complainant has lied, however it does illustrate the need that some safeguards be put in place so that a false complaint can still be effectively challenged in Court.
Simon Power seems like an complete ignoramus. Someone who fundamentally misconstrues a law that he wants to reform is hardly in a position to tell the Chief Justice she doesn’t know the proper constitutional boundaries.
Power is scary. A classic example of a little knowledge being dangerous.
Vote:July 24th, 2009 at 4:06 pm
Are you people deliberately being thick. Particularly you Rex or is it just that you don’t get enough people subscribing to your pathetic views on prison reforms. Thus you take the nonsense that is two lawyers and your own pathetic yearnings and are incapable to realise what the fuck Power was talking about.
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10586341 – Read and the updated Herald article and learn a thing or two.
Vote:July 24th, 2009 at 4:11 pm
Ginger – goota love the headline “read before criticising”. Shame power didn’t do that before whaling into the chief justice with is idiocy.
I’ll stick with the Power is an idiot brigade. Much better to be on the side of truth.
If jonkey wants his Notional Government to be more than a one term wonder he needs to bang heads together, starting with Power and Smith. just what drugs are these two on?
Vote:July 24th, 2009 at 4:16 pm
Well they sure didn’t read his speech did they.
Making evidence about previous sexual relationships between the complainant and any person inadmissible without prior agreement of the judge.
- http://www.national.org.nz/Article.aspx?articleId=30423
The more important question MyNameIsJack is what drugs were your parents on to produce someone so utterly stupid, racist, homophobic and ultimately pathetic?
Vote:July 24th, 2009 at 4:21 pm
Yeah, definitiely with the ‘Power is an idiot’ brigade. Sack him and replace him with Finlayson. How embarrasing to have such a fool of a Minisater slagging of the Chief Justice – a proverbial voice of reason.
Vote:July 24th, 2009 at 4:23 pm
“My question is this: Do people here believe that if a woman [in general] brings a false accusation of rape against a man [in general], and it is then proved that she, with full knowledge, lied about the rape, should she face the same ‘penalty’ as would have been measured out to the accused had he been found guilty [of rape]?”
My initial inclination was that it sounds harsh but considering it more I think this could be reasonable. Someone falsely accused can easily be affected as much as someone who is actually raped – it doesn’t involve physical violation which must be terrible when it happens against someone’s will, but apart from that the consequences of false accusation can be at least as bad.
On a slightly different tangent, marginal rapes can be quite different to probably most other crimes. If you speed a bit you get fined a bit. If you you steal a bit you get punished a bit. But, especially when alcohol is concerned (not an excuse but a fact fudging factor) there can be a fine line between guilty and innocence with rape. It’s feasible that you could get the situation where the accused reasonably believes consent, and the victim reasonably believes no consent. But the end result of accused versus not accused, charged versus not accused, guilty versus innocent, can all be huge.
The police must have a very difficult job with morning after accusations. Some will be valid cases. Some may be little more than post-coital (or post-pissed) regret. And some may be a misguided excuse once found out partner or family.
Vote:July 24th, 2009 at 4:24 pm
Power has pointed out that what he has proposed is different to the current law. The sexual history between the complainant and the victim would also be off limits unless a Judge agrees.
Incidentially now that the point has been clarified, I don’t agree with it.
Vote:July 24th, 2009 at 4:25 pm
How do you know that?
That seems like an interesting fact to remember — but “I read it in a blog comment” isn’t much of a citation. Got any references?
Vote:July 24th, 2009 at 4:30 pm
As far as I’m concerned the jury is still out on Power. He could have jumped into discussions a bit quick at times, and maybe as ginger pointed out he has not been clear enough or has not been reported clearly enough.
But I would rather see a minister engaged in topics and prepared to speak and let us know what they are thinking rather than waffling around topics without saying anything of substance, which is far too common – as long as they get things right by the time it gets to the legislation stage.
Vote:July 24th, 2009 at 4:36 pm
it’s three knee jerk reactions in a row now, Elias, Wetherspoon & now rape. He needs to be let go
They can probably get him back for the Xmas party, as an Elvis impersonator.
Vote:July 24th, 2009 at 4:42 pm
Yes. Mine wasn’t though
Vote:July 24th, 2009 at 5:17 pm
gingercrush:
Oh, so the story’s now changed to “despite being trained as a lawyer the Justive Minister can’t express a simple concept in a succinct and unambiguous way and instead says it in a manner which confuses lawyers, Kiwiblog commenters (and DPF himself) and the media, but somehow it’s theirfault”.
But that still makes him the best man for the job, right? Keep spinning gc… you’ll meet yourself coming back on the way round and finally be able to talk to someone who agrees with you.
Vote:July 24th, 2009 at 5:21 pm
Cerium 4:23 pm [and my earlier comment at 2:44 pm],
“My initial inclination was that it sounds harsh but considering it more I think this could be reasonable. Someone falsely accused can easily be affected as much as someone who is actually raped – it doesn’t involve physical violation which must be terrible when it happens against someone’s will, but apart from that the consequences of false accusation can be at least as bad.”
“The police must have a very difficult job with morning after accusations. Some will be valid cases. Some may be little more than post-coital (or post-pissed) regret. And some may be a misguided excuse once found out partner or family.”
Therefore, I wonder if there were legal consequences to false allegations of rape whether this may ‘balance the ledger’ a little.
Vote:Imagine if it were the guy that had “post-coital (or post-pissed) regret”, and he decided to bring charges of rape against the woman; he’d be laughed out of court.
Of course there have been a number of cases where the wife has brought false charges of rape, or for that matter kiddy fiddling, against the husband in child custody cases, and as a result won.
It seems the woman/wife has all the legal protection, while the man/husband has, essentally, none.
I really do feel strongly that this is a bad situation where men are guilty irrespective of lack of proof, and even if cleared that stigma stays with them.
Surely there are strong grounds to bring changes to the law so that innocent men are afforded greater protection when such false allegations are brought.
If we do not, then, are we as a society, in effect, supporting the further marginalisation of men? And only further compounding the view that, in essence, ‘all men are rapists’?
July 24th, 2009 at 5:22 pm
My position is that the more evidence a jury gets the better. The jury should be able to get evidence about the histories of both the accused and the accusers. Both are relevant. Juries should be trusted to assess them properly.
Vote:July 24th, 2009 at 5:39 pm
The press doesn’t understand the differences in the law and often confuses one legally distinct term with another. When the article mentions that Power was proposing that ‘past sexual relationships’ were to be made inadmissible the legal profession quite reasonable reacted that they already were.
Now that he has clarified the matter by pointing to the specific words of the speech (which we went and read) we are in a better position to judge.
And he is still wrong.
But all of the other proposals appear to have been missed, and I am just as concerned about them as I am about the lead point. We have always expected that eventually the onus in a rape case will go on the accused. It has been proposed for years now and the Justice Ministry is always happy to see the potential for more convictions.
Why can’t we accept that rape is a horrible crime and any re-living of it is always going to be traumatic but we must have complainants questioned closely on it so that we can be sure justice is being done. That is because we really don’t want innocent people being imprisoned because of a false complaint or a mistaken identity.
Vote:July 24th, 2009 at 6:16 pm
Repton,
http://tvnz.co.nz/view/page/423466/602846
“The investigators say they believe three or four out of every five rape complaints are false.”
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10339669
According to my Yearbook 2004, there are about 200-300 rape convictions per year, and according to the Peterellis site the DomPost (2004) states the five year average of false rapes was 444.
http://www.peterellis.org.nz/FalseAllegations/index.htm
The DomPost link is not longer active, but theres a wealth of data backing up opinion that false rape complaints are a major issue.
JC
Vote:July 24th, 2009 at 6:43 pm
> Power has pointed out that what he has proposed is different to the current law. The sexual history between the complainant and the victim would also be off limits unless a Judge agrees.
No doubt you mean “alleged victim”.
And whether the sexual history of the accused and accuser is admissible is surely dependent on whether it is relevant. There may well be instances where that history is relevant. The Evidence Act 2006 places a lot of emphasis on the issue of relevance, so I am not sure Power is achieving much (if anything) by proposing a law change. Besides, many rape cases involve couples who do not have a sexual history, so changing the law won’t have any effect on such cases.
If Power is serious about reforming the justice system, he should talk to retired judge Sir Thomas Thorp. Thorp has previously raised concerns about miscarriages of justice – and has suggested that many such miscarriages occur in the context of sexual assault or rape case – and has advocated for an independent criminal cases review commission to investigate miscarriages. Power has been silent on the latter.
Vote:July 24th, 2009 at 7:19 pm
Kris, I don’t know the law around it well, but I would expect it should apply equally to either sex, in theory. But the application of the law concentrates on the female victim side of things simply because that is who the majority of the victims are.
Vote:July 24th, 2009 at 7:19 pm
Meanwhile, in Australia, a Victorian politician has had rape allegations against him dismissed.
http://www.theaustralian.news.com.au/story/0,25197,25828777-5006785,00.html
Vote:July 24th, 2009 at 7:21 pm
Jennifer Day convicted of falsely accusing a man of raping her – only received a two year jail term.
http://www.dailymail.co.uk/debate/article-1201418/Liars-rape-strike-heart-justice-system.html
Surely harsher penalties are required when convicting these women?
Vote:July 24th, 2009 at 7:32 pm
“The investigators say they believe three or four out of every five rape complaints are false.”
Thanks JC for backing up my earlier claim made without any links. All Police investigators are well aware of the 70-80% false reporting rate, however, they have very effective policies at nevertheless ensuring all potential sex victims are treated with dignity and respect.
All Simon Power is going to do is turn a significant percentage of the ‘false reports’ into ‘miscarriages justice’.
He will be our first Minister of Injustice as the rate of miscarriages skyrockets. One or two of those wrongly acquitted might get snapped up too though… hooray for Simon.
Vote:July 24th, 2009 at 7:36 pm
Cerium 7:19 pm,
“Kris, I don’t know the law around it well, but I would expect it should apply equally to either sex, in theory. But the application of the law concentrates on the female victim side of things simply because that is who the majority of the victims are.”
I agree Cerium. When the victim is proven to have been raped, then the full weight of the law should come down upon the perpetrator.
But, as I stated before, this should not diminish the fact that if a woman falsely accuses a man of raping her, and is subsequently found to have lied, then, perhaps she should be given jail time in balance with what the man would have served had he been found guilty of rape.
I think we essentially agree on these two points. I’m just arguing for greater culpability regarding women who lie in these situations; that they suffer the consequences, and that those [legal] consequences need to be more harsh.
Vote:July 24th, 2009 at 7:53 pm
Because of the vexed issue of consent there are many shades of truth in rape cases:
Guilty, Unproven, Mistaken Accusation, False Accusation.
So it is not a black and white issue regarding false accusations. It would require a trial and conviction for making a false complaint to establish liability. In many cases there would also be questionable mental states involved I expect.
Vote:July 24th, 2009 at 7:55 pm
Yes. Many rape victims could be charged with rape under that law change…
Vote:July 24th, 2009 at 8:07 pm
Thanks for pointing out that further absurdity, Graeme. All these proposals would do is turn many of the 80% of false rape complaints into serious miscarriages of justice. Great. Time for this Minister of Injustice to be replaced by Finlayson, at least he has some idea of what he is on about and won’t make fundamental mistakes about the law. Simon Power can pick up that dipshit Paula Bennett’s job.
Vote:July 24th, 2009 at 8:19 pm
And Kris, it could also be said that comparing a fuzzy consent (or not) rape case with a considered vindictive false allegation should lean to a much stronger penalty for the latter.
Vote:July 25th, 2009 at 11:50 am
Cerium July 24th 8:19 pm,
Agreed.
Vote: