Power’s Reforms

The 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.

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