Rape: put the accused on trial, not the victim

Largely overlooked on the blogosphere have been the recommendations in Law Commission’s report (large pdf) on the disclosure of previous convictions, similar offending, etc, in court.

The most interesting and important may not have been central to the original brief, which was to some extent obviated by the Court of Appeal’s view of the Evidence Act 2006. It’s about wider court processes in sexual offence trials.

The Report highlights the evidence of retired Appeal Court Justice Ted Thomas that, “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.”

It is. The focus is all too often the complainant’s sexual history and conduct. It is all too often the victim who is rigorously cross-examined in an attempt to undermine her credibility. The victimisation of the victims in NZ’s sexual offence cases has been a weeping sore for far too long.

The Law Commission, clearly swayed by Thomas’s evidence, concludes:

“We formed the view that the government should undertake an inquiry into whether the present adversarial trial process should be modified or replaced by some alternative model, either for sex offences or for some wider class of offences.”

“The Task Force on Sexual Violence which is presently sitting should be asked to define the issues and possible options that could be considered by that inquiry.”

“We do not express any view about what the outcome of the inquiry should be but we are troubled about the manner in which these cases are currently dealt with.”

An excellent suggestion. The “alternative model” they’re talking about is the inquisitorial system. As Catriona MacLennan pointed out on Nine-to-noon today, aspects of the inquisitorial system have been introduced in areas such as employment law and small claims adjudication, so it’s not such a revolutionary idea to be looking at.

I don’t see why we’re so wedded to the adversarial system. It’s only indirectly aimed at seeing justice done, despite what many NZers think. Here’s hoping that the government takes up the Law Commission’s recommendations without delay.

[Note:The RNZ interview is worth listening to. MacLennan suggests that defendants prove consent.]

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14 Responses to “Rape: put the accused on trial, not the victim”

  1. AndrewE Says:

    An immediate problem with MacLennan’s suggestion that defendants prove consent is that we have a presumption of innocence. It’s not up to the defence to prove that they are innocent – it is up to the prosecution to prove guilt.

    She fobbed that of by saying that it was only in relation to the consent issue but seriously – if there is no consent you are guilty of rape. Hence you are automatically guilty if a woman accuses you.

    How the hell do you prove consent? Get your partner to sign a form? Tui would love that one.

  2. MacDoctor Says:

    AndrewE: You’re quite right. Rape is a spectacularly bad place to try a non-adversarial system. After all, it is often very much a “he said, she said” affair and the presumption of innocence is the bed-rock of our law. Even revealing past rape convictions is a very dubious thing indeed.

    I have often thought that a non-jury trial would be a better option. A good judge would be able to question witnesses fairly, without the manipulation of lawyers. S/he would would also be able to access the past convictions without undue prejudice. The whole thing would be considerably less stressful for everyone, especially the claimant.

  3. AndrewE Says:

    I think that’s a great idea MacDoctor.

  4. Inventory2 Says:

    I’ve also just posted on this JP – the presumption of innocence is fundamental to our criminal justice system, and McLennan’s suggestion is a paradigm shift in the burden of proof. In a word, NO!

    http://keepingstock.blogspot.com/2008/07/presumption-of-innocence.html

  5. Ari Says:

    I have often thought that a non-jury trial would be a better option. A good judge would be able to question witnesses fairly, without the manipulation of lawyers. S/he would would also be able to access the past convictions without undue prejudice. The whole thing would be considerably less stressful for everyone, especially the claimant.

    Well, it sounds good in theory, but it also makes the trial heavily dependent on having an impartial judge- and as basic a requirement as that sounds, there are plenty of cases internationally of less-than-impartial judges putting ridiculous constraints on rape cases- such as the inability to mention the word “rape”.

    I’ve also just posted on this JP – the presumption of innocence is fundamental to our criminal justice system, and McLennan’s suggestion is a paradigm shift in the burden of proof. In a word, NO!

    Yeah, that’s a step too far I think.

  6. Ari Says:

    Whoops, apparently I broke one of my quote tags. That first paragraph belong to MacDoctor. 🙂

    Thought it sounded familiar, Ari. Fixed. Sorry, as I am still using the wordpress platform I can’t enable self-editing. That might change soon.

  7. Anna McM Says:

    Great post, JP. MacDoctor, I’ve got a lot of sympathy with your suggestion, but I think it’s important to remember that in a rape case, to presume that a man is innocent is to presume that a woman is lying. Presuming that a woman is lying invites explanations like ‘it was really consensual’ or ‘she was asking for it’.

    It’s very difficult to proceed with these presumptions and not make awful assumptions about women and women’s sexual behaviour, then be critical of women who don’t meet the expectations (eg, should have known better than to get drunk, wear a short skirt, etc). And while it’s better for 99 guilty to go free than one innocent person be convicted, the free 99 rapists create a social climate in which women can’t move freely or feel safe.

  8. Trouble Says:

    Going back to first principles is all very well, but those principles didn’t just materialise out of thin air – they were developed by people over time. The people in charge of the common law justice system as we know it, through most of its lifetime, were men who lived in very different times. Imagine having this conversation in an Islamic law context, where the laws have been set down for more than a thousand years or so that you need four male witnesses to prove cases of rape. Someone who knows more about sharia than I do could probably provide a better insight into how that all works, but even as a hypothetical, it works – To many people in such a society, changes to that standard may represent a serious erosion of what they consider to be important checks and balances.

    If they could be wrong, so could those of you above who think proving consent etc is a step too far. The justice system, first and foremost, needs to deliver justice. It’s not doing it when the main way of getting your client off a rape charge is to savage the reputation of the complainant, only a small fraction of genuine complaints result in conviction, and there is no other recourse for victims.

  9. Proving consent « Jafapete’s Weblog Says:

    […] posted last month on the Law Commission’s comments on the need to reform court processes in sexual offence […]

  10. Anonymous Says:

    If Your Common Law Nation abolish the principle of confrontation in the parties it would be a shame. In 1999 the italian Parliament passedn Amendament of the Constitution establishing the cross examination as a the basic rule on criminal trials. And Italy is not properly a Common Law Nwtion. The Basic Law of Italy forbid conviction on the basis of testimony of witnesses who freely and purposely avoided Cross examination by the defence. Also The Laws of Civil Law Nations Establish rules for fair trial.

  11. Egy Says:

    I have writtend the precedent comment (about confrontation, cross-examination, Civil Law and Italy etc.), who appair anonimous by mistake.
    Read About the terrific Story of Carlo Parlanti:

  12. Egy Says:

    On google you can see the terrific and incredible story of Carlo Parlanti, a clair victim of a false accusation.

  13. Egy Says:

    I can not show you the networks about Carlo Parlanti But you can see them throught google writing “Carlo Parlanti Alleged Guilty”, “Carlo Parlanti unfair justice. MR PARLANTI WAS CONVICTED IN VENTURA (CALIFORNIA, USA) BECOUSE THE PROSECUTOR AND THE COURT DID NOT WANT ACCEPT UNDESIDERABLE INVESTIGATION. THERE ARE CLAIR EVIDENCE ON HIS INNOCENCE BUT HE IS STILL IN A JAIL. WHAT ABOUT THE REASONABLE DOUBT?

  14. Egy Says:

    IThe presumptikon of innocence is a basic rule of trial in the Bible, in the Constitutions of a lot of Nations, in the Common Law, in the Statutes of Civil Law Nations and in all international charters on human rights. Also the Civil Law Nation have laws that grant the presumption of innocence (called in some nation “presumption of no guilt”). Innocent until proven guilty. Not guilty until senenced. Do you remember the Blackstone fosmulation? Blackstone wrote: “better that ten guilty persons escape than one innocent suffer”.
    Basic rule on criminal procedure are the presumption of innocenc and the principle of confrontation. Even in Civil Law Nation (that you call inquisitory). In Civil Law Nation the judge must explain the reasons of the sentence and the superm Court may avoid the sentence for contradictory reasons, even in evaluation of evidence. Some Civil Law Nation have no jury but their laws grant defendants against arbitrary convictions.

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