Sex trials

August 14th, 2013 at 11:00 am by David Farrar

Simon Collins at NZ Herald reports:

Sexual violence survivors are launching a push for alternatives to jury trials in a bid to avoid retraumatising victims.

Speakers at a seminar in Auckland yesterday said fundamental changes were needed so raped and abused women were not “revictimised” by lawyers’ cross-examination of their sexual histories in front of juries, while offenders could stay silent.

Many victims of do have to undergo an appalling process in . At least with almost no deposition hearings now, they only go through it once.

However not everyone accused and charged is guilty. They have a right to have the evidence of their alleged victim cross-examined by their lawyer. There would be a risk of more innocent people going to prison, if they don’t have a right to challenge evidence fully.

Also as I understand it the sexual history of the victim is generally off-limit in court – unless it relates to the particular person or incident.

Justice Minister Judith Collins has halted work on proposals in a Law Commission issues paper last year to change the adversarial court system to an “inquisitorial” system where a judge controls what evidence is presented and how it is given, questions witnesses before letting lawyers fill in the gaps, and requires defendants to give evidence first.

She said last September that it would not be practical to have an inquisitorial system for sexual offences but not for other cases, because sexual offenders might also face other charges.

An inquisitorial system has its pros and cons. I wouldn’t mind having it more fully considered – but I agree it would be difficult to do for some offences only.

 

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20 Responses to “Sex trials”

  1. Redbaiter (8,878 comments) says:

    Starting with her legal assault on the boy racers (while Maori P gangs operate with impunity) Collins has continuously attacked the principles that underpin our traditional justice system.

    It is why I describe her as a thug.

    Pity really, she’d probably be a fine MP otherwise, as far as such a thing might exist today.

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  2. ross69 (3,652 comments) says:

    Unfortunately, the Herald dredges up the old canard that “Only about one sexual offence in every 100 leads to a conviction.”

    That is speculation at best. I note that when this canard is raised, it is seldom (if ever) mentioned that false allegations of sexual abuse are a reality. Jan Jordan did some research showing that false allegations of rape are a small but significant issue in the context of rape allegations.

    The debate about sexual assaults and the justice system invariably is one where many people want to see more convictions. The corollary of more wrongful convictions doesn’t seem to get the same air time.

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  3. RRM (9,924 comments) says:

    In no way am I trying to get into blaming or denigrating rape victims… but if you chose to make a rape complaint, you’re choosing to do something. Follow through. Right is on your side.

    It’s not meant to be a free catharsis service that exists for your convenience.

    If you expect “society’ to punish someone who’s offended you, then accept that the other side of that coin is you as a participant in society have some duty to speak up against those who have done wrong.

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  4. RRM (9,924 comments) says:

    PS: Here is an “old canard”:

    http://ietlassociation.info/bpc/old-duck-toy.jpg

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  5. ross69 (3,652 comments) says:

    It is unclear how many false allegations of rape/sexual abuse are made in New Zealand. However, research by Jan Jordan suggests that the numbers could be significant. Jordan examined 164 police files from 1997, files which contained allegations of rape and sexual assault. Police categorised the allegations as follows:

    1. Genuine Cases – The police believed the complainant was telling the truth that she had been raped or sexually assaulted.

    2. Possibly Genuine Cases – The police were unsure if the complainant had been raped or sexually assaulted. There was typically insufficient evidence to conclude that rape or sexual assault had occurred.

    3. False Cases Determined By Police – The police believed the complaints were false.

    4. False Cases Declared By Complainants – The complainant admitted their complaint was false.

    Jordan reports that the numbers for each group were 34 (21%), 62 (38%), 55 (33%), 13 (8%) respectively. In other words, only 21% of files that were examined by Jordan were determined by police to be genuine rape complaints, though there were possibly other genuine complaints which could not be substantiated. Even if all cases that were possibly genuine were accepted as genuine, it is apparent that 41% of complaints were considered to be false.

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  6. nickb (3,687 comments) says:

    Continuing the good work of Simon Power, among other things the removal of a key defence in our criminal justice system because it was used unsuccessfully in one trial.

    Has this government introduced a single justice policy built on evidence and research instead of populist propaganda?

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  7. tvb (4,422 comments) says:

    Do not have trials at all then. Just make an accusation convict the accused and lock them up for 10 years. I think we could have a lessor offence of a sexual assault of say 3 years but put the onus on the accused to show there was consent. That should deal with the date rape situation, which often results in an acquittal.

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  8. Redbaiter (8,878 comments) says:

    “continuing the good work of Simon Power,”

    What a complete disaster he was.

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  9. Fentex (974 comments) says:

    However not everyone accused and charged is guilty. They have a right to have the evidence of their alleged victim cross-examined by their lawyer. There would be a risk of more innocent people going to prison, if they don’t have a right to challenge evidence fully.

    How curious to compare to recent reactions to the suggestion people accused of assaulting children should be punished without trial at all.

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  10. Graeme Edgeler (3,289 comments) says:

    How curious to compare to recent reactions to the suggestion people accused of assaulting children should be punished without trial at all.

    You’re going to have to point me to such suggestions, because if you are talking about the ones released yesterday they involved a trial.

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  11. DylanReeve (166 comments) says:

    My one jury experience so far was on a rape trial and it was one of the most demoralising experiences of my life.

    A number of fellow jurors, despite a woman being forcible attacked, threatened and physically overpowered by her attacker felt that because she’d gone to the guy’s home willingly, and because she’d smoked cannabis with him, and that she didn’t scream or object enough when he attacked her that it wasn’t really rape.

    This despite clear instruction for the jury that a victim doesn’t have to fight or scream for it to be rape and that “a reasonable person” would have to believe they had consent for it not to be rape. Less than half of us on the jury were willing to convict. The case resulted in no decision as we couldn’t reach a verdict.

    The things I heard fellow jurors say, along the lines of the stereotypical “she was asking for it” horrified me at the time and have stayed with me ever since. Juries are a terribly flawed system. I don’t know what a better alternative is necessarily, but they are far from perfect.

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  12. ross69 (3,652 comments) says:

    You’re going to have to point me to such suggestions, because if you are talking about the ones released yesterday they involved a trial.

    Well, you’d like to think they will involve a trial but that might not necessarily be so. Moreover, even if a trial is involved, potentially innocent people could be affected.

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  13. Fentex (974 comments) says:
    How curious to compare to recent reactions to the suggestion people accused of assaulting children should be punished without trial at all.

    You’re going to have to point me to such suggestions, because if you are talking about the ones released yesterday they involved a trial.

    The initial announcement on Kiwiblog, where the reactions I referred to occurred, more than merely implied no trial.

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  14. Alan (1,087 comments) says:

    Juries are shit, I sat on a murder trial where we acquitted a guilty person for reasons with no basis in law.

    However, there isn’t a better system; the existence of a jury of your peers is one of the few remaining fundamental safeguards an individual has from the power of the state. The ability to appeal for justice over the law. The jury acquittals at the Eureka Stockade trials are a great example. It’s been there since magna carta for a reason.

    I really don’t see a problem that we need to fix.

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  15. F E Smith (3,305 comments) says:

    An inquisitorial system has its pros and cons.

    Mostly cons, and when you get to the actual trial most inquisitorial systems use the advesarial process to try the defendant.  These proposals are not to make the system ‘fairer’ to the accuser, but simply to try to get a higher conviction rate. 

    Also, when the suggestion is made that the judge should do the questioning, it must be recognised that it is entirely possible that the judge is in fact the least experienced cross-examiner of the three lawyers in the room (judge, crown counsel, and defence counsel).

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  16. wf (442 comments) says:

    . . . . . put the onus on the accused to show there was consent. . . .

    ” Nah I didn’t rape her. She said no, but I knew she didn’t mean it”.

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  17. Harriet (4,972 comments) says:

    “……… . . . . put the onus on the accused to show there was consent. . . .” Nah I didn’t rape her. She said no, but I knew she didn’t mean it”…….”

    Quite right wf.

    “…NO means yes and YES means in the arse….” was a Yale Campus saying a few years ago. It gets even more confusing:

    “It was very dark, and at first she let me touch her breasts and virgina, I then accidently put my dick next to her anus instead of her vagina as they are so close together, and she said ‘no’ ‘no’ ‘no’ I then just shoved it in her vagina and she gasped and didn’t say anything…….now she’s crying rape!…….”

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  18. GPT1 (2,122 comments) says:

    The cross examination of previous sexual history is a red herring designed to push an agenda. The nuts or sluts defence is well gone and would turn a jury off even if you were allowed to run it.

    To cross examine on sexual history leave of the judge is required and is only granted in rare cases where it is relevant to the allegation.

    There is no easy way to give evidence and certainly not evidence of sexual abuse but fundamentally an accused has the right to face their accuser.

    I would note that an accused can not cross examine the complainant directly, evidence is given in such a way that a complainant does not see the accused – either screened or by video link and any counsel who strays into areas unnecessarily personal can expect to be brought into line firmly.

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  19. F E Smith (3,305 comments) says:

    GPT is exactly right. The Evidence Act places some strict controls and oversight on lawyers in examining and cross-examining complainants.

    Although advocates who want changes to the system used in trials complain about the ‘unfairness’ of rape trials, it has always seemed to me that their real issues lie with the investigation side of things.

    Also, it is misleading to say that only one in 100 rapes gets a conviction. As ross69 pointed out, the stats are that there are still too large an amount of false complaints, and sometimes even a genuine case just doesn’t have sufficient evidence to identify an attacker.

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  20. Chuck Bird (4,883 comments) says:

    “Also, when the suggestion is made that the judge should do the questioning, it must be recognised that it is entirely possible that the judge is in fact the least experienced cross-examiner of the three lawyers in the room (judge, crown counsel, and defence counsel).”

    We should have a serious look at the criteria for selecting judges. The problem is worse overseas. Power could not find a stupid enough NZ Judge to do the Bain report so he invited my compatriot Ninnie J.

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