Proving consent

The Ministry of Justice is now seeking comment on the idea that those charged with rape should have to prove consent as well as on proposals to create a legal definition of consent to remove ambiguity and to ban questioning complainants about their sexual history with the alleged attacker. (Discussion document here, or here for the 672KB pdf file).

I posted last month on the Law Commission’s comments on the need to reform court processes in sexual offence trials. As retired Appeal Court Justice Ted Thomas rightly put it:

“the nature and impact of the trial in sexual cases on complainants is a brutalising and distressing experience in which the complainant is effectively put on trial.”

Something needs to be done to ensure that justice is done and that sexual violence is taken seriously and some of the proposals in the Ministry’s paper look promising on the face of it.

But doing away with the presumption of innocence and requiring a higher standard of proof from defendants is another matter. There are flaws with “innocent until proven guilty”, but it is generally thought that it is better to let a few guilty go unpunished then to punish the innocent. Last month Inventory2 condemned the idea as “a piece of liberal lunacy”, saying “(it) goes too far, and should be quickly condemned to the dusbin.”

How about we look at all the other alternatives, implement those that look like they will make a difference, and then revisit the issue of proving consent if we consider this necessary. There is a great deal to gain, but also a great deal to lose.

[Update: MacDoc makes some constructive suggestions about how to improve the trial process.

And in his typically thoughtful way, Bomber at TUMEKE! crows that, "... gone are the days a rape suspect could claim consent from the sparkle in the victims eye." Some will be surprised to hear that this is what rape suspects argue.]

The state of democracy in NZ

Speaking of the state of democracy, Colin James’s thoughtful piece in yesterday’s Granny deserves more attention on the blogosphere.

James suggests:

“Here’s a democratic promise John Key could make: that if Prime Minister he will promote a fixed term for Parliament. Republican Helen Clark has clung to the vestige of monarchical power that allows her in effect to set the election date.”

Good point. The setting of the election date to gain (perceived) electoral advantage is in no way democratic. Also, there are arguments for and against a longer term, but I think that the benefits for economic management are compelling. It’s worth serious consideration.”

More interesting are James’s musings on the “self-interested” promise of a binding referendum on the voting system:

“Any less proportional alternative [to MMP] – certainly the supplementary member system he favours – would advantage the two big old parties. In this election it would have smoothed National’s bid for power.”

James does the math to demonstrate this. In particular, the smaller parties miss out. But — and here’s a point that is often overlooked — the voters have been busy adapting MMP “without waiting for the politicians.” James calls this a “two-phase clean-up.”

“First, (the electorate) has been steadily whittling down the ‘wasted’ vote for parties which get party votes but not seats: from 7.5 per cent in 1996 to 6 per cent in 1999, 4.9 per cent in 2002 and 1.3 per cent in 2005.”

In phase 2 the voters will start whittling down the number of small parties represented in Parliament. Peters, Dunne and Anderton are all really relics of the old FFP system. When they go, their parties go too, most likely. James even speculates that when Hide goes, so too does ACT.

And I’d argue that NZ voters have demonstrated a very sharp sense of how to operate MMP to reflect the popular will. In 1999 and 2002, they wanted fairness and moderation, but they weren’t prepared to give Labour unfettered power. The precision with which they achieved this outcome was remarkable.

I agree with James. If Key is serious about democracy, then he could look at giving up the opportunistic use of election date setting and an extended term. Leave the voting system to the “punters”, we’re already fine-tuning it.

USA is a truly free and open society. Yeah right.

Over at kiwiblog, Farrar promotes a new website “formed by some Londoners to fight anti-Americanism. It must be important to some people that the whole world has the same ill-informed, brain-washed view of the greatness of the USA that your average flag-worshipping Jefferson County Hoosier entertains.

Farrar, for whom ridding the world of this terrible scourge — anti-Americanism, not the Bush-voting rednecks — seems urgent, tells us that the new website has, “a useful myths page, including:

• Myth: America is not a truly free and open society”

What myth?

A very few of you will recall a discussion about the lack of freedom in the USA on my very second post. In it I recounted how:

“I once pointed out to some Americans who were crowing but how “free” they were compared to me (!) that I was planning to visit Cuba, but that their government wouldn’t allow them this freedom of travel. Not well received. I stopped myself from adding a few more freedoms that they are denied when I saw the trouble they were having with the cognitive dissonance this example caused.”

Challenged to add a few more I came up with:

• Laws governing what people could get up to in the privacy of their own bedrooms were still on the books in a number of states in 2003, when the Supreme Court in Lawrence v. Texas ruled laws criminalizing private, non-commercial sexual activity to be unconstitutional. The “Land of the Free” stopped at the bedroom door.
• Gays can get married in NZ, but only in Califonia, I think.
• Straight or gay, we can legally pay for sex in NZ. (Spitzer was in the wrong place at the wrong time, clearly.)
• I checked on the rules surrounding “patriotic customs”, an area where the USA has been noted for its stringent controls on its citizens’ freedom to express themselves, and see that the penalties for desecrating the flag, etc, have been removed, at least from the Federal Code. So now its just strong societal pressure that keeps people in line. Or perhaps the states have moved to fill this gap.

Things have got worse since the 1990s, of course, with the wholesale phone tapping, monitoring of citizens’ bank accounts (Spitzer wouldn’t have been caught in NZ), and so on.

For an authoritative and thorough account read the Freedom House report “Today’s American: How Free?” on the state of freedom in the United States.

From the review in the Economist “Land of the free? Liberty in America is not quite as revered as its leaders pretend“:

““How Free?” not only details and condemns the administration’s familiar sins, from Guantánamo to extraordinary rendition to warrantless wiretapping. It reminds readers of its aversion to open government. The number of documents classified as secret has jumped from 8.7m in 2001 to 14.2m in 2005—a 60% increase over three years. Decade-old information has been reclassified. Researchers report that it is much more difficult and time-consuming to obtain information under the Freedom of Information Act.”

That latter point is a gross understatement. Read Jimmy Carter’s recent piece on the FOI Act in the Washington Post. Carter notes that according to the National Security Archives 2003 report, median response times (mandated by law at 20 days) may be as long under the Republicans as 905 working days at the Department of Agriculture and 1,113 working days at the Environmental Protection Agency.

So, Farrar, there are some suggestions for your summer reading.

The Tui are back. Yeah Right!

It would be selfish of me not to share one of Mt Eden’s best kept secrets. For a few weeks every year, Fairview Rd is resplendent in blossom and the Tui flock to feast on it by the dozen.

We went for a walk this morning down Fairview Rd, as the blossom on some trees is already out, and is threatening to bloom on the others.

The Tui have started to return for their annual extended picnic. Even at this point we counted getting on to twenty birds and could hear their happy song and deep-throated gurgling all around.

By the weekend it should be possible to stand under a single pink cloud of blossom and glory in the sight and song of upwards a dozen birds. On a fine day it makes for a special spring spectacle, and can be combined with a coffee at Altar, just a few steps up Mt Eden Rd.