Thursday, 14 August 2008

improvements to sexual violence legislation

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.


DPF:TLDR said...

Leaving the admission or non-admission of prior sexual history the discretion of the Judge may simply result in the status quo with a veneer of consideration. The current judiciary have shown that they are highly comfortable with the victim's sexual history being dragged through the courts.

Having skimmed the document (in my defense, it's late and I have work tomorrow) it seems the only guidance for the Judge's decision is that the victim's sexual history with the rapist must be 'relevant'. Surely it goes without saying that any prior sexual history is never relevant? If this provision were applied fairly it would never be activated since relevance would never be proven. I suspect that it is not the intent that this provision be a dead letter, rather that the intent is that current system of deterring accusations by humiliating the victim is intended to continue, albeit with a thin veneer of consideration which will exist only on paper.

Overall, it's hard to support this.

Anonymous said...

I assume the potential "relevance" of a victim's prior sexual history with the rapist feeds into the issues with consent - i.e. an assumption on the accused's part that previous sexual interactions amounted or contributed to consent. So maybe a two-pronged approach is required - both tightening the restrictions around bring up victims' sexual history AND explicitly stating that previous sexual encounters are not indicative of or contributory to "consent".

Of course, if we make all these changes I'm sure there'll be outrage and months after implementation there'll be letters in the DomPost saying "Rape is still happening, so this law doesn't work!" a la the repeal of s59.

DPF:TLDR said...

Having looked over this again I'm rather stunned by this bit:

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

So if consent has not been given, but the accused/the 'reasonable eprson' isn't aware of that, it's not rape? That seems pretty ridiculous to me.

stargazer said...

that's absolutely right hugh. the complainant has to prove beyond reasonable doubt that the accused knew he didn't have consent or should have known from her actions. he has no obligation to provide any evidence that he made any effort to ensure consent. doesn't sound right to me either...

DPF:TLDR said...

What we are really seeing here is a conflict between the concept of 'innocent until proven guilty' and the concept of 'assume consent is not given unless explicitly stated'.

Unfortunately, the legal system massively privileges the first, and does not, as far as I know, recognise the second at all.

Anonymous said...

Hugh- OR the prosecution has to prove that the accused unreasonably believed that the victim had consented, if the defendant's lawyers put in a defense of mistaken belief. I think the key part to work on here is making "unreasonable" be fair to rape victims. It's a very tricky type of case because a lot of the evidence is of the he-said-she-said variety, and of course, the Bill of Rights doesn't allow us to presume guilt just on an accusation. (which overall is probably a good thing)

I think that Canada has some really good ideas in their law specifically lists some types of unreasonable justifications of consent:
a) Belief of consent can't result from intoxication.
b) Belief of consent can't result from ignorance.
c) Belief of consent requires a "reasonable" attempt to establish consent in the first place. (this one would probably need clarification)

Another useful approach that I'd suggest is to make submissions on possible definitions of consent so that it's clear that consent is incidental rather than systematic. That kind of stymies the relevance of previous sexual encounters in rape cases.

I'm gonna think about this in more detail, but I definitely think we could get some positive stuff out of this. It would still require a judge to interpret it in a way that's relatively victim-friendly, but that's a problem with any law change.

stargazer said...

ari, a) and b) are already part of nz law. our law defines situations that do not amount to consent, including intoxication, intellectual/physical impairment, is subject to fear/force, or are mistaken about the identity of the person or the nature or quality of the act.

it's c) where our law falls flat, and where some improvement would definitely be useful.

DPF:TLDR said...

the Bill of Rights doesn't allow us to presume guilt just on an accusation. (which overall is probably a good thing)

Ari, that might be the case for most crimes, but do you think it really applies for rape?

I can't think of any reason why a woman would accuse a man of rape he didn't commit. I suppose if she was raped by a stranger there might be a case of mistaken identity at work, but that's an issue of identity not consent, and the man can defend himself by showing that he was elsewhere at the time, that his sperm sample doesn't match, etc. And given how few rape cases involve women the man doesn't know, this a pretty marginal area of the law.

Anonymous said...

Hugh- I can think of a few cases where a woman might make false allegations, but they involve REALLY fringe cases where women are incredibly desperate or disturbed. I totally agree that most cases of rape allegations are likely to be genuine, and I dislike the level of moral panic most men get into when they think about false rape convictions. (even if I understand it)

That said, I think we can and should demand more of our justice system without compromising on our principle of allowing people accused of a crime to be considered innocent until it is proven beyond reasonable doubt, or until they can confess.

Anjum- thanks for the update on those criteria, it's good to know we have some of them already. I'll try to find a copy of the law I can look through sometime this week.

On reflection, I think I've changed my mind on something you brought up earlier. It might actually be very useful to look into is having the law define what "relevant" sexual history is- for instance, a previous rape claim that wasn't successfully prosecuted or proved could be relevant, but sexual habits or history that try to paint a woman in a negative light in general shouldn't be. I'm sure with a little consideration it should be possible to come up with some good logical statements on that sort of thing.

DPF:TLDR said...

Ari, if a woman is desperate enough to accuse a man of rape he didn't commit, he is probably abusing her in a non-sexual way, and thus the idea of him getting punished for a crime is not too scary to me.

You mention 'beyond reasonable doubt'. What it comes down to is that it is not reasonable to doubt a woman's identification of a man as a rapist.