Marie Dyhrberg QC writes:
Unfortunately, the bill crosses the line between assisting complainants and preventing accused men from effectively defending themselves. …
For instance, at the moment a complainant can record an interview with the police and have that played to the jury and only appear at the trial to answer the defence lawyer’s questions, out of view of the defendant.
What is proposed is that the defence lawyer would have to cross-examine the complainant in advance, say a year before trial. It is impossible for the defence lawyer to know what the issues are at that point. Cross-examination in advance is unworkable
And gets worse.
The bill also states that consent to sexual intimacy must be given every time, which no-one disputes, but then stretches logic to say the jury cannot hear about intimate encounters the same couple had previously. With a rape allegation, when the sex is not denied, the trial turns on whether the defendant had reasonable grounds for believing the complainant consented. Where a couple are in a relationship, that belief may well depend on what had been usual and acceptable between them before.
If the belief was unreasonable, let the jury decide, which they cannot do if the defendant is banned from telling his side of the story.
So a defendant can’t defend themselves.
While it is true that some victims do not come forward because they fear the trial process, it is also true that innocent men get accused, sometimes for very vindictive or perverse reasons.
Other areas of the criminal law, such as assault and fraud, have victims, including vulnerable ones. But we do not suggest that the conviction rate for these offences be unjustifiably or unlawfully bolstered by preventing accused persons from legitimately defending themselves with relevant evidence.
In some ways this law is no surprise. Before the 2017 election Andrew Little proposed that men who have sex with women be presumed guilty of rape unless they can prove they had consent. So Little wanted you presumed guilty instead of presumed innocent, upon accusation.