in yesterday's mail, i received a copy of a public discussion document from the ministry of justice. it's entitled "improvements to sexual violence legislation in nz', and is now open for submissions. the deadline for submissions is 30 sept 2008.
i've been reading through bits of it. it outlines some possible changes to the laws around rape and sexual violence. unfortunately i'm not a lawyer, so won't be able to provide any kind of detailed analysis. but i can provide a brief rundown of the issues. hopefully those with more of a background than me can provide some comments on the implications of the proposals.
in any case, i think it's really important to make submissions on this. it's a chance to make some meaningful changes to the law, to make the system work better for victims of sexual abuse and violence.
there are basically three areas of law which the document proposes to change:
1. definition of consent
the current law outlines situations that do not amount to consent. however, it doesn't actually provide a definition of consent. other countries have moved providing a definition, but there is not evidence that this has had a positive impact. such a definition could help in changing attitudes although it may not, in practice, change the current law. it certainly won't simplify the issue of consent. a good example of a definition (except for the sexit language) from the UK is:
"a person consents if he agrees by choice, and had the freedom and capacity to make that choice"
2. reasonable belief of consent
basically the crown either has to prove that that the accused did not believe consent had been given, or that no reasonable person would have believed the complainant was consenting. this has to be proved beyond reasonable doubt. some countries have laws which require, in addition, that the accused provide some evidence that he had an honest belief of consent. in other words, juries could be required "to consider the steps the accused in establishing consent". this would help to balance of focus between the accused and the complainant (currently, the main focus tends to be on the latter). the document does not propose changing the burden of proof, as this would be inconsistent with the bill or rights act (innocent until proven guilty).
3. further protections to prevent past sexual behaviour being used
in nz, the sexual history of the complainant with anyone other than the accused isn't allowed unless by permission of the judge. sexual history with the accused is allowed, even though other countries prohibit it. allowing sexual history undermines the notion that consent must be given on each occasion. it allows irrelevant personal matters to be raised. the proposal is that sexual history with the accused also be disallowed, unless by prior permission of the judge.
the report then goes on to consider alternative models such as the inquisitorial approach. it also goes into the restorative justice process.
that's a very brief summary of a 39 page document, hope it's useful. as i say, i'd be interested to hear what people think of it all.
in possibly related news, clint rickards is struggling to find a publisher for his memoirs. i wonder if it's because they think it won't sell or because they don't want to be associated with him. there is possibly a public interest in seeing what was going through his mind all those years ago, but then he did get the 60 minutes (or was it 20/20) interview to tell his side of the story. given that he is unlikely to take any responsibility for his actions, it may just be a list of excuses and some vitriol against his colleagues that investigated the case and pressed charges.