Law changes for sex cases

October 26th, 2009 at 8:22 am by David Farrar

The Herald editorial says:

According to retired Court of Appeal Court judge Justice Ted Thomas, the present trial system is “brutalising and distressing” for complainants in sex cases. For that reason, it is unsurprising that many victims of are deterred from coming forward. Ways must be found to reverse that and to act on a Ministry of Women’s Affairs study that concluded only 13 per cent of sexual violation cases reported to police ended in conviction.

I agree. But I also note that already the is using the wrong stat from the MWA study. That 13% includes complaints found to be false, and I am sure the Herald is not wanting to imply that there should be more convictions based on false complaints. The figure the Herald should be citing is that only 20% of “valid” complaints led to a conviction.

A core recommendation would allow an accused’s past sex convictions and the complainant’s past complaints to be disclosed. This would address the considerable public disquiet following the acquittals three years ago of former policemen Brad Shipton, Bob Schollum and Clint Rickards on sex charges in the Louise Nicholas case. After the trial, it was revealed that Shipton and Schollum were already in prison after being found guilty in 2005 of the pack rape of a young woman at Mt Maunganui in 1989 – information that could not be disclosed to the jury previously.

Other taskforce proposals include giving judges the ability to direct juries that they may draw an “adverse inference” if an accused opts to stay silent, and to also direct that “beyond reasonable doubt” does not mean “no doubt” the accused is guilty.

In essence three major changes are proposed

  1. Allowing details of previous convictions
  2. Allowing a jury to draw an adverse inference from an accused staying silent, and presumably not testifying
  3. Stressing that reasonable doubt does not mean no doubt

There are reasonable arguments for and against such changes. My position though is that any such changes must apply to all criminal cases, not just sex cases. Why would you give more (or less) rights to those accused of murder, kidnapping, grievous assault, armed robbery etc etc.

It would be seriously unjust that if someone is accused of killing someone they have the right to remain silent, but if they are accused of rape, they lose the right to remain silent (without adverse inferences).

Also why would you have a system which allowed a jury to know someone accused of rape had a previous rape conviction, but not that someone accused of armed robbery had previous convictions for armed robbery?

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43 Responses to “Law changes for sex cases”

  1. radvad (666 comments) says:

    Also, a complainants sexual history should be able to be examined AND so should the defendants.

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  2. Graeme Edgeler (3,268 comments) says:

    It would be seriously unjust that if someone is accused of killing someone they have the right to remain silent, but if they are accused of rape, they lose the right to remain silent (without adverse inferences).

    Why?

    The right to [not have adverse inferences drawn from] silence is important. You need a compelling state interest to be advanced if you want to remove it. You should only remove it if there aren’t other lesser ways of achieving that compelling state interest.

    I haven’t seen a full argument made, but perhaps getting rid of the right to silence can be justified in some category of cases because it is the only way to secure just convictions in such cases, but there is no problem in obtaining just convictions in others. Perhaps in some category of cases, the risks to fair trial from removing the right to silence are lower, so a less-compelling state interest is needed to remove it.

    I suspect I’ll be against the law changes, but I cannot see how these two are linked … indeed you could just as easily be asking “Why would you set up a system that treats rape and armed robbery the same?”

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  3. ernesto (257 comments) says:

    DPF: “My position though is that any such changes must apply to all criminal cases, not just sex cases. Why would you give more (or less) rights to those accused of murder, kidnapping, grievous assault, armed robbery etc etc.”

    Because these are limitations on the right to a fair trial, the right to silence etc, the Bill of Rights says they must be ‘reasonable and justifiable limits’ in a free and fair democracy. Assessing what is ‘reasonable and justifiable limits’ is a four step process set out by the Supreme Court in R v Hansen. Step one is to ask ‘is there a pressing objective?’; step two asks ‘is there a rational connection between the proposed changes and the pressing objective?; step three asks ‘is this the minimum reasonable impairment needed to meet the objetcive?’; and step four asks ‘Is this a proportional response?’; Failure at any one of those steps means the limitation is not ‘fair and reasonable’.

    Put simply, there there is no ‘pressing objective’ that requires extending the proposed changes to other charges as there are not difficulties in prosecuting the cases. There aren’t a screed of murder or robbery cases where people with past convictions are acquitted. Other convictions are already admissible if there is a striking similarity with the offence charged. Ted Thomas has also written on miscarriages of justice and how these are most commonly the result of mistaken but convincing eyewitness identifications of offenders. I agree rape is difficult because there are often no independent witnesses to the issue of consent, however extending the rights to other trials is not a justified or reasonable limitation in terms of the Bill of Rights, particularly when our system is premised on the notion that it is better that 10 guilty people go free than 1 innocent person be convicted.

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  4. Patrick Starr (3,675 comments) says:

    changes 2 & 3 would have been useful in the Bain case

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  5. nickb (3,660 comments) says:

    While we’re at it, why don’t we put the evidential burden on the accused to defend themselves beyond reasonable doubt?

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  6. John Cawston (909 comments) says:

    GE,

    “Why”

    Because many or most cases eg, casual sexual intercourse, are little different to a casual bargain or contract between two people. However, like in other contract disputes, one party may feel aggrieved in the following hours, weeks or months and decide complain about the contract. In both cases there are difficulties in establishing if a) a contract was struck, and b) if the contract went as originally agreed.

    Either way, I don’t like the thought of tilting the playing field to advantage the complainant when the facts can be so difficult to establish.

    JC

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  7. Chuck Bird (4,686 comments) says:

    They maintain the difficulty of conviction relates more to the myths and prejudices that surround sex crimes; that it is, for example, somehow a woman’s fault if she gets drunk and is raped.

    The above quote is from the Herald. It is a woman’s fault if she gets drunk and has sex she later regrets. I am sure there are plenty of young men who have had sex they regret in the morning. If a relatively sober young man come across a woman too drunk to stand up and he has sex with her then that is rape. However, if they both have had too much to drink it is unreasonable to blame the man.

    If it is a case of he says she says I cannot see now any jury can convict beyond a reasonable doubt – and they very seldom do. These cases should not go to Court because there is not a prima facie case. Unfortunately they do and this results in a low conviction rate and the call for a law change.

    Sadly, I think National will adopt many of these unreasonable recommendations in its quest for the woman’s vote. Hopefully, mature woman will consider the wider ramifications like there son’s possibly being wrongfully jailed for rape.

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  8. Graeme Edgeler (3,268 comments) says:

    John – that wasn’t what I was asking “why?” to.

    I was asking why it would be “seriously unjust” to only do this in sex cases. There seemed no logical reason why the two should be linked. DPF is arguing that if we remove the right to silence from those accused of rape, there will be serious injustice done to those accused of other crimes (or victims of other crimes?).

    What serious injustice would be done in other cases?

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  9. Patrick Starr (3,675 comments) says:

    “Ministry of Women’s Affairs study that concluded only 13 per cent of sexual violation cases reported to police ended in conviction”

    I’d be interested to know how many of the remaining 87% are sex worker cases?
    I’ve always found it unusual that a customer who doesn’t pay his tab with a prostitute is considered a rapist, as opposed to a shop lifter, or bad debtor.

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  10. Grant Michael McKenna (1,156 comments) says:

    The ‘right to silence’ was rewritten in 1912 to say that adverse inferences from an accused’s silence could not be drawn. Because common law has the myth that it stands outside of history, ie that it is unchanging, this is not often realised.

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  11. BlairM (2,288 comments) says:

    This is not a positive development.

    It is often overlooked that the courts cannot undo a crime, but only punish after the fact. In court, the prosecutor is the agressor. The prosecutor seeks to do harm to the defendant, depriving them of their liberty and property. The onus is with the complainant. They seek to do evil to another person, and should have to prove why that evil is justified.

    To turn the tables, to say that a complainant who seeks to do harm does not have to give an account of themselves, to say a defendant must be judged twice for the same crime, is a grave corruption of the underpinning of our civilisation. It is not justice, but an appeasement of middle class guilt to make these changes, and they will have real victims far worse than the shame of consensual sexual intercourse a woman subsequently regrets.

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  12. Spam (593 comments) says:

    Need to consider why previous offending is currently withheld from the Jury: Because it can be prejudicial. I would suspect that this law change will result in a few people being wrongly convicted because of previous history.

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  13. s.russell (1,565 comments) says:

    I agree with DPF that there is a serious problem with the low conviction rate following sex crime complaints. There is a prima facie case that a lot of rapists are getting away with their crimes.

    But I also agree with his disquiet over adopting a different standard of proof for sex crimes – that is just asking for injustice to occur – especially given the known level of false complaints.

    I am inclined to think that the taskforce proposals are missing the point. The need is to make the trial process less traumatic for victims, not to weaken the standard of proof.

    Also, I suggest that proposals two and three are pointless. Whatever the law may say, I am sure juries DO draw inference from a defendant’s silence. And the inequivalence of “beyond reasonable doubt” and “no doubt” is just common sense.

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  14. F E Smith (3,302 comments) says:

    Point 1 is already available to the prosecution upon application to the judge.

    Point 2 is already law in the UK for all cases so the Law Commission will want it here soon enough.

    Point 3 is already in practice so why was it recommended?

    The UK government actually changed the law with the intention of making it easier for the Crown to obtain a conviction in sexual violation cases (you know, if you are the prosecuting authority and you can’t get the conviction rate you want then of course it must be ok to change the laws to favour you more) but in fact it has made no difference to the conviction rate.

    Juries are aware that this is a fraught charge to make a decision on and take the job very seriously.

    Edit: If they are willing to change the standard or onus of proof it for ‘just’ sexual violation cases, how long before the decide it should be changed for all cases?

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  15. F E Smith (3,302 comments) says:

    Don’t forget that an accused person was not allowed to give evidence in their own defence until very late in the 19th century. Amazing how in just over 100 years we have gone from not trusting the accused to give truthful evidence to not trusting the accused when they don’t give evidence!

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  16. Captain Neurotic (206 comments) says:

    The usual dictum claimed is that “the innocent exercise the right to speak whilst the guilty choose to remain silent” – the point of the legal system is for the defendant to prove the evidential burden then it is entirely up to the prosecution to prove beyond reasonable doubt that the defendant is infact guilty… I realise most here are aware of this…

    What we have here with these proposed changes seems to be another attempt to “fix” the problem however like most knee-jerk reaction legislation I feel it will do more harm than good. I haven’t completely made my mind up, on one side it sickens me when rapist/pedophiles/murderers are aquitted then it is revealed that they have had a string of convictions prior but on the other hand I can see many innocent being wrongly convicted.

    I agree with Ernesto to an extent and I think we should leave it to the court to decide whether the probative value overrides the prejudicial effect. Also just because the judge must warn against making an inference from silence, there is nothing it the Evidence Act that prevents it from occurring and I sure that jurys/judges often do!

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  17. F E Smith (3,302 comments) says:

    Actually, what is the issue here? The problem cannot be the court process, because 49.5% of sexual violation cases THAT GO TO TRIAL result in convictions. That is only slightly lower than the average for all trials, and we are not complaining about other cases.

    This report is suggesting changes to trial procedure when the real issue is why do only 26% of sexual violation complaints go to trial?

    Well, of course, at least 13% of them are false, for a start. Others have insufficient evidence and so forth.

    So how the hell is changing trial procedure to favour the Crown going to change any of that?

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  18. Graeme Edgeler (3,268 comments) says:

    Don’t forget that an accused person was not allowed to give evidence in their own defence until very late in the 19th century.

    I thought there was a further link in there:

    from: the accused cannot give evidence –> the accused can only give unsworn evidence –> the accused can give sworn evidence.

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  19. F E Smith (3,302 comments) says:

    Or was it 30% were false? I forget.

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  20. John Cawston (909 comments) says:

    GE,

    I’m assuming DPF is comparing the different standards proposed between rape and murder. Sure, the murder accused is not disadvantaged, but the rape accused would be in terms of “blind” justice.

    In part I think like that because I see our type of society in flux as it comes to grips with a new position for women in society. One that moves from something feudal and protective towards the “weaker sex” to seeing women as equals in all respects. In the process we are developing attitudes that say a woman is free to go where she chooses, have sex with whomever.. but we still want to protect her from the consequences of that freedom.

    In fact, more freedom requires more common sense and responsibility, and these proposals seem to be pushing the development of common sense and personal responsibility into the background.

    JC

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  21. F E Smith (3,302 comments) says:

    Graeme, now you are testing my memory! Some jurisdictions allow an accused person to make an unsworn statement from the dock. This is not able to be cross-examined on so is a safer way for an accused person to make a point. I don’t recall, however, that that was an intermediate step in NZ or the UK.

    I could be wrong, however!

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  22. Viking2 (11,147 comments) says:

    More womens lib interfering in the Institutions of men.

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  23. metcalph (1,384 comments) says:

    Turning onto other matters, I strongly doubt that the verdicts in the Rickards, Schollum etc cases would have been changed as a result of these laws. Schollum and Shipton were convicted of a rape that occurred _after_ the alleged incidents with Louise Nicholas cases and could hardly be said to be prior convictions at the time of their second trial. And that’s leaving aside the question of Lousie’s reliability.

    The only other high profile rape acquittal that I can recall is Tea Ropati who didn’t have a criminal record and testified fully. Again the changes not going to make a jot of difference to the verdict.

    I do wonder how the prior records provisions would be interpreted. A case in point is Kevin Moana Jarden now serving a preventive detention sentence for child sex offences. He had a prior and public record of crimes revolving around a third woman who was over age at the time the offences occurred. Would this be relevant for a jury to assess his guilt on child sex offences under the proposed changes?

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  24. metcalph (1,384 comments) says:

    Some jurisdictions allow an accused person to make an unsworn statement from the dock.

    A practice of European Courts and one allowed at Nuremburg.

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  25. PaulL (5,875 comments) says:

    In terms of prior history. Imagine we had a trial and someone could not be convicted “beyond reasonable doubt.” Now imagine we introduce their past history. What has changed that could and should lead to a conviction? Only that the defendant has previously been accused and/or convicted of a crime.

    Now, if they were convicted that could make them a bad bastard. But doesn’t mean they did this crime. If they were only accused, does that mean that if you’ve been accused a couple times, you’ll start getting convicted? That is to say, if you are unlucky then you’re going to get more unlucky?

    I’m very uneasy about this. On the flip side, presumably the jury will be directed about the evidence – accused is different from convicted, if the crimes are very similar it might give pause, if they are unrelated then maybe not.

    But are we really going to allow the complainant’s sexual history to also be available? I.e. you had sex with someone whilst drunk 5 years ago, one night stand. Therefore you probably weren’t raped this time, you probably had a one night stand that you now regret? That is just as bad going the other way – again you might imagine the jury are smart enough to know the difference, but a jury is a cross section of NZ society – and not all of NZ society are as unbiased as we might hope.

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  26. Grant Michael McKenna (1,156 comments) says:

    F E Smith makes a very good point about the evolution of the right of the accused to give evidence. Before 1912 the accused’s evidence was heard by means of the counsel’s argument whereas now there is no obligation on the accused to make any explanation as to the facts; counsel simply has to show problems in the Crown’s case, not show why the accused is innocent, which is how it should be.

    This is going to need a lot of consideration.

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  27. Chuck Bird (4,686 comments) says:

    If a person has been accused multiple offences with a similar MO I can see a good case for trying them together. If someone dates a woman from the internet a complaint might be genuine or some guy could have told a woman it was love at first sight and fails to call her again. How is a jury going to know with reasonable certainty who is telling the truth?

    However, if there is more then one complaint of a very similar nature then it is one person’s word against two or more complainants.

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  28. F E Smith (3,302 comments) says:

    Chuck, a colleague of mine has just had a client in your internet dating situation. He was charged with rape but then the police withdrew the charge after a few weeks. Not before they had opposed his bail, mind you, despite the fact that he has no previous convictions of any sort.

    Of course, for the statistics this then becomes an ‘actual’ rape that failed to achieve a conviction. Really? When the police decide that the complainant is not telling the truth for whatever reason? They didn’t charge her, but it was clear why they withdrew the charge.

    With regards the multiple offences with the same MO, that is already admissible if the judge allows it. We call it propensity evidence.

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  29. gazzmaniac (2,317 comments) says:

    The justice system convicts too many people who are innocent as it is. Changing it to favour the complainant will only make this worse.
    Also, we do have to look at personal responsibility. If the complainant goes out for a night on the town and gets trolleyed, then goes home with someone who they ordinarily wouldn’t, whose fault is it? The complainant’s choice to get drunk, take pills, or whatever is one of the main contributing factors. It is not fair to send the defendant to gaol when there was (albeit drunken and likely implied) consent from the other party. You also have to take into account that many people can be quite vindictive – if the defendant “dumps” the complainant quite unceremoneously she can file a complaint with the police and even if nothing comes of it, the reputation of the defendant is tarnished if not destroyed.

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  30. andrei (2,506 comments) says:

    Why not just make possession of a penis an offense and be done with it

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  31. Deborah (156 comments) says:

    My position though is that any such changes must apply to all criminal cases, not just sex cases. Why would you give more (or less) rights to those accused of murder, kidnapping, grievous assault, armed robbery etc etc.

    One possible difference between rape and other crimes that is that a rape trial is often a matter of “he said” vs “she said.” That is, it comes down to the credibility of the accused and the complainant, whereas in other crimes, there is often / usually / always other evidence available. So given the lack of other evidence, you might want to have a way of testing the credibility of the accused. At present, in rape cases, given that the accused is not required to give evidence, there is very little way to test his (or her) credibility.

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  32. gazzmaniac (2,317 comments) says:

    If the accused is forced to give evidence and be cross examined in court, so too should the complainant, as their integrity is just as relevant as the accused. Also, someone’s integrity isn’t and shouldn’t be the basis of a conviction – there needs to be some sort of evidence to back it up.

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  33. Chuck Bird (4,686 comments) says:

    “With regards the multiple offences with the same MO, that is already admissible if the judge allows it. We call it propensity evidence.”

    F E, I understand that relates bringing up an accused record of convictions with a simialr MO.

    Does this also allow someone to be charged with multiple offenses at the same trial so that all the complainants can testify against the accused at the same trial?

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  34. F E Smith (3,302 comments) says:

    Chuck, it can if all of the complainants have made allegations at the same time. So if 2 or more complainants go to the police, or come forward as a result of the investigation, then the Crown will often file an indictment including all complaints. The defence will the apply for severance of the counts in the indictment. This is not easy to get unless you can show there is no real connection between the cases or you can show collusion, which is always hard to do.

    As you can see, it is always difficult to defend when you have a couple or more complainants alleging the same thing. Of course, the person could always be guilty!

    Deborah: A trial is not about the accused’s credibility. It is about the credibility of the complainant as they are the one making the allegations. The accused does not have to prove a thing, so their credibility only enters into the equation if they give evidence.

    Edit: And a rape case always has a male accused. A woman cannot rape, they can only sexually violate.

    Gazzmaniac: the complainant always gives evidence in some way. However, the report writers and Minister Power are considering giving the judge the responsibility of obtaining the evidence from the complainant rather than allowing cross-examination. Or, at least, that is how I am perceiving it. The problem with that is that quite a lot of judges were not trial lawyers so don’t have any real experience in cross-examination!

    s.russell: how would you make the trial process less traumatic for complainants? Already they only give evidence once. Do you propose their statement be the only evidence from the complainant so they don’t have to attend court at all? I am interested because I can’t see how to make it any less ‘traumatic’ than it already is.

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  35. Mr Noisy (27 comments) says:

    Deborah @ 12:16pm

    Surely you’d then have to equally test the credibility of the complainant as well? I believe that it is considered to be dangerous to convict in a ‘he said, she said’ scenario at the best of times, but how can you arbitrarily place more weight on one persons testimony than anothers, irrespective of whether they’re complainant or defendant? Innocent until proven guilty, or so the saying goes…

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  36. Deborah (156 comments) says:

    Yes, of course, the complainant’s credibility must be tested as well. I wasn’t trying to say that you should place more weight on the complainant’s evidence – only pointing out that one difference between rape and other crimes is that often it’s a matter of what he said happened vs what she said happened. Hence it might be a good thing to be able to assess the accused’s credibility as well as assessing the complainant’s credibility.

    My understanding is that the only person who can elect not to be a witness is the accused. So the complainant is required to take the stand, if either the prosecution or the defense wants her (or him) to do so.

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  37. F E Smith (3,302 comments) says:

    In theory someone could be convicted of rape without the complainant’s evidence, if, for example, there were other eye-witnesses.

    Highly unusual, though.

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  38. metcalph (1,384 comments) says:

    In theory someone could be convicted of rape without the complainant’s evidence, if, for example, there were other eye-witnesses.

    There was a case of somebody who confessed to the police that he had raped a schoolgirl. The police tried to find the victim but couldn’t. They prosecuted him for rape in any case and despite the perp repudiating his confession, he still got convicted. I don’t know how it played out in the appeals as it was many years ago but I do recall the defence lawyer being Marie Dyhrberg.

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  39. Graeme Edgeler (3,268 comments) says:

    I’m assuming DPF is comparing the different standards proposed between rape and murder. Sure, the murder accused is not disadvantaged, but the rape accused would be in terms of “blind” justice.

    Disadvantaged when compared to a murder accused – yes. But that doesn’t mean it’s a serious injustice.

    The idea that it would be unjust to convict a rape accused following a trial in which adverse inferences were drawn from his silence, I can accept. The idea that it would become just because you made a law change which allows adverse inferences to be drawn from the silence of murder accused puzzles me…

    Edit: And a rape case always has a male accused. A woman cannot rape, they can only sexually violate.

    I’m not sure that’s true. I had believed there was a New Zealand case where a woman was charged (I think convicted) with rape for forcing two people to have sex (at knifepoint?).

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  40. Chuck Bird (4,686 comments) says:

    “I’m not sure that’s true. I had believed there was a New Zealand case where a woman was charged (I think convicted) with rape for forcing two people to have sex (at knifepoint?).”

    A more recent case is Karla’s Cardno father, Gary Duffin and his girlfriend Sharyn Hills have been found guilty of rape. It is on 60 Minutes tonight.

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  41. F E Smith (3,302 comments) says:

    From s128 Crimes Act:

    “Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis”

    But of course I wrote hastily- a woman could be convicted of rape as a party. The gunpoint issue is interesting, because it is the rarely used ‘innocent agent’ scenario. I haven’t heard of that particular one, Graeme, but I think it would be possible but extremely rare.

    Also, the term rape is often confused with sexual violation, so a media description isn’t always accurate.

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  42. GPT1 (2,091 comments) says:

    Sexual violation is the crime and the defintion is either unlawful sexual connection or rape.

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  43. dad4justice (7,791 comments) says:

    Or it can be sexual violation and unlawful sexual connection with a child under the age of 17 years.

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