From today's Herald:
The justice system could be tilted to make it easier to convict sex offenders if the Government adopts proposals in a controversial taskforce report.The report from the two-year taskforce for action on sexual violence, issued yesterday, would reverse the usual rules of evidence for sex cases only - disclosing previous offences and complaints against an accused offender, directing juries that they may draw an "adverse inference" if an accused opts to stay silent, and directing them that "beyond reasonable doubt" does not mean "no doubt" that the accused is guilty.
Other proposals include full funding for rape crisis agencies and an entitlement to two years of counselling for all sex abuse victims - a stark contrast to new Accident Compensation Corporation rules restricting counselling to victims with diagnosed mental illnesses and for a maximum of 16 weeks at a time.
Sorry I don't have time to write more about this (and won't until next week, so any other THMers feel free to pick this up!), but do check it out - there are some real fish hooks mentioned in the article and they are only proposals at this stage (which is probably good, I'm personally uncomfortable about the one about negative inference from silence on the part of the accused).
2 comments:
The report can be viewed here:
http://www.justice.govt.nz/policy-and-consultation/taskforce-for-action-on-sexual-violence
So, lets see:
1. Propensity evidence already allows an application for the disclosure of previous convictions if they are similar to the charge before the court, so not much change there. The complainant's past complaints are also admissible if they are relevant. However, I understand that most men accused of sexual crimes do not have previous sexual offending and most complainants have not made previous complaints, so this won't change much anyway.
2. ALL juries are ALREADY told that beyond reasonable doubt does not mean no doubt, they are told that it means they must be 'sure' that the accused committed the crime. So no change there.
3. There already is an absolute ban on the accused person cross-examining a complainant in a sex or DV case, see section 95 Evidence Act, so no change there.
4. A jury will be told it can convict even if there is no forensic evidence or corroboration. Snap, already done and resulted in convictions. So no change there.
5. Juries to be told that there may be good reasons for a complainant to delay making a complaint. Already done, so no change.
6. Prosecutors are already required to seek some complainants views on mode of evidence applications and most ask all complaints their views anyway. So no or little change there.
7. Support persons are able to be in court upon application to the judge. Happens all the time. So no change there.
8. Inference allowed to be drawn if accused exercises his right to silence. Firstly, any smart person accused of sexual offending ALWAYS makes a VIDEO interview ASAP when accused. No video makes it so much tougher when they give evidence. Also, if they make a video statement then they don't need to get in the witness box at all, so even better. Secondly, this is already done in the UK and no doubt the MoJ wants it in here sooner or later and be applied to all cases of any sort, so why raise an issue with it?
9. A requirement to show active measures taken to obtain consent. Hmm, so effectively a 'he said, she said' situation unless some form of positive proof, which every smart man should do now anyway. Never trust a woman where sex is concerned, even if they say they want it, get proof.
10. Prohibition on disclosure of sexual contact vis a vis complainant/accused. Rarely relevant unless there is a previous relationship, and if there is undoubtedly it will come out somewhere. So little point.
All in all, not much to change, really.
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