Monday, 29 June 2009

Quick hit: Possible change to the way rape cases are tried?

From the Herald this morning:
Justice Minister Simon Power has asked the Law Commission to investigate introducing a European-style inquisitorial justice system in sexual offending cases.

Despite the outcry following the David Bain trial, Mr Power said he had no intention of overhauling the adversarial-style system used here where the role of the judge is essentially that of an impartial referee.

But he said the inquisitorial system, where the judge is involved in collecting and determining the facts of the case, could have its uses in victim-intensive situations such as sexual offending and child abuse.

"There might be some elements of the inquisitorial process that might be less traumatic for victims of crime if they are applied in a limited context," Mr Power said.

He said he would also ask Prime Minister John Key for permission to travel next year to assess the inquisitorial system in a country where it is in use, such as France.

The adversarial system is a source of controversy in sexual cases, because the women or child victims can be cross-examined by defence lawyers while the defendant is allowed to exercise the right to silence.
That's the whole thing.

Bomber has written approvingly about this, and I tend to think it is a step in the right direction, although I will withhold my judgement (see what I did there?) until we see some actual concrete proposals.


Byron said...

Sounds like a good system. One dilemma I have is that I think the principle of "innocent until proven guilty" is an important one in all cases, but at the same time have a problem with rape/abuse victims being cross-examined- especially when the defendant has the right to silence (didn't know that until I read this post!)

Michael said...

You may remeber the Lt Col now Maj in the Army who preyed on young women.
His demotion was so that this second court case of sexually propositioning his mates wife then threatening her is before the Courts Martial.

Byron said...

One dilemma I have with the current system I mean

Julie said...

Michael, do you mean this case?

Hugh said...

A few facts to remember about the Inquisitorial System:

* It doesn't involve a presumption of guilty until proven innocent.
* It doesn't prevent defense lawyers from making a case that their client didn't do it
* It doesn't, at least in any country I'm aware of, result in a higher conviction rate for rape cases.

portia said...

The inquisitorial system may not result in more frequent convictions, but if it persuades more victims to come forward the result may be a net gain of more cases of rape and sexual assault being prosecuted in the first place. I suppose that will depend on whether the victims perceive that they have more of a fighting chance under the new system.