The right to a fair trial

Samira Taghavi writes in Stuff:

As a young woman, I came to New Zealand eleven years ago from the Middle East to undertake my Master of Laws degree.

Early on I was struck by how rights and freedoms are so frequently taken for granted by those born in this country. Because I come from a part of the world with so few protections, fair trial rights that protect people accused of crimes – of any type – are particularly important to me.

Now as a defence lawyer, I feel compelled to explain the very damaging effects to those rights that the Sexual Violence (Legislation) Bill would inflict if enacted.

So what are these rights in danger?

The first major change proposed that is of grave concern is the remarkable idea of prima facie outlawing relevant evidence benefiting the defendant, thereby increasing the likelihood of innocent men being convicted and imprisoned. So what actually is ‘legally relevant evidence’?

The answer is, ‘any evidence that makes a fact in issue either more or less likely to be true’. An example of a ‘fact in issue’ could be, ‘did they have sex?’

The particular evidence in question that this bill seeks to presumptively declare illegal is that of the prior sexual relationship between the defendant and the complainant. The fact that the two of them had had consensual sex on previous occasions could therefore not be traversed, as of right.

Of course prior consensual sex is not proof of current consensual sex, but it can be highly relevant.

Another championed justification is that consent must be given on every occasion – a necessary element recognised by the law for so long now that its mention is truly trite.

While contemporaneous consent is essential, a caveat must be remembered; sexual intimacy does not, in the moment, lend itself to forward-looking legalism.

As a moral certainty, there will never be a contemporaneously signed document proving consent and so instead where the defence of consent is raised, the whole issue before the court will be the reasonable grounds upon which the defendant’s understanding of consent was based.

Thus, the heart of such a defence is the previous concordats that the couple had – their routines, practices and certain ways of doing things, that demonstrate the defendant’s reasonable belief in consent.

This is key. Consent is sometimes implicit, not explicit. Sometimes it is verbal, sometimes somatic. Consent can be for some sexual activities, but not for others. And a defendant should have the right to defend themselves against a charge of not having consent.

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