Friday, 4 September 2009

on changing consent laws

there's an excellent piece in this month's werewolf magazine by catriona maclennan, about the need to change consent laws:

Judge Wade concluded by saying that one of the most disturbing features of the case was the fact that it had gone totally unreported, as did nearly all of the cases at the Manukau District Court. He said that the court was wasting its time in imposing deterrent sentences if the public was left in total ignorance of what went on at the courthouse.


“It is anachronistic to prevent the prosecution commenting on the fact the accused did not give evidence in the context of what is still an adversarial process. Either the accused’s silence should be open to comment or it should not.” He described it as “nothing short of a gross injustice” to complainants when the accused did not give evidence and no adverse inference could be drawn from that silence.

Justice Thomas said that there was a growing consensus that, without overriding basic adversarial structures, proceedings for sexual offences should be more concerned to arrive at the truth. He said that it was essentially unfair for the accused to be able to cross-examine the victim and seek to cast doubt on her credibility and integrity, but for the accused to be able to remain silent without any inference being drawn. Justice Thomas suggested that, in sexual cases, it should be open to the jury to draw adverse inferences from an accused failing to give evidence.

please read the whole thing. it gives a very good summary of the issues and of the work done to date in this area. it's great to see the minister of justice, hon simon power taking these issues seriously. let's hope we see some changes happening soon.


tussock said...

I really don't get it. How the hell is sexual offending so much worse than murder that we need to challenge the accused's silence, that we cannot challenge the character of the sole witness, and that we seek a high conviction rate as a measure of justice?

Hell, since when is any trial about the probability of truth? That's for civil law, not criminal. Maybe we should "upgrade" rape to the civil courts, that's where you'd get challenging of the accused, truth-seeking ahead of absolute legal proof, and some sort of "fairness" between the plaintiff and defendant (rather than the might of the state attempting to prove someone's guilt).

But if you want civil standards of proof, you have to put up with civil standards of punishment. Is that acceptable either?

libertyscott said...

There is a legitimate issue about whether juries should infer anything from the use of the right to remain silent. That would apply to all crimes.

Witnesses must always be challenged. Juries of course make judgments about the accused saying nothing, typically it is negative. Although there are plenty of accused who don't help themselves by saying anything at all.

dad4justice said...

libertyscott -my vast experience as a court McKenzie friend does not agree that your last sentence is correct because defence lawyers often advise clients to say nothing come trial time.How many examples would you like. Funny how those same lawyers become judges later on? Talk about"helping themselves"!