Not the Police’s finest moment

By the end of last week, the so- called Roast Busters fiasco had reached the point where Police Commissioner Peter Marshall was pleading on Radio NZ for the public to keep in mind who the bad guys really were in this instance. No such luck. Every time the public did think about the guys who ply young and underage girls with liquor, have sex with their stupefied victims and then slut-shame them afterwards on Facebook, the failings of the police force that is supposed to catch and prosecute such people only became more obvious.

The operational failings of the police have been astonishing.

Asking traumatised victims to be ‘‘ brave enough’’ to lay a complaint proved only the beginning of a litany of errors. It quickly transpired that several girls had already come forward, only to be told nothing could be done, because a prosecution was unlikely to succeed. In essence, the police were inviting victims to be ‘‘brave enough’’ to complain publicly, in the knowledge their complaints would probably be futile. Some invitation.

Given the Facebook evidence and the existence of multiple complainants, the reluctance of the police to prosecute was extraordinary. As one commentator put it: ‘‘They’ve got 72 cops and a chopper for copyright infringement, search warrants on the media and seizure of legally privileged communications for an audio recording of a public conversation, and sweet f*** all for multiple, ongoing gang rapes.’’

This was not to be the police’s only operational malfunction.

Another young woman told Radio NZ the police had also erred in the opposite direction by urging her to continue past the point where she, on reflection, had decided to withdraw her complaint and put the ordeal behind her. She had reached that conclusion for reasons of selfpreservation: namely, that a court case would be likely to result in her assailants walking away scotfree.

It is in the nature of sexual assault that independent witnesses are rare. At that point, the adversarial nature of our justice system kicks in, and exposes the complainant to what can sometimes be brutal interrogation about her behaviour and demeanour. Regularly, complainants are left feeling re- traumatised through being accused, in effect, of being responsible for the crime committed against them.

The Roast Busters episode has now exposed a culture of insensitivity about date rape among police and sections of the media alike.

Even when a prosecution for sexual assault is mounted, complainants are still vulnerable to the adversarial nature of the legal system.

The challenge, therefore, goes beyond educating the police – yet again – about how to deal properly with rape complainants.

It involves making the process of cross-examination in such cases more sensitive to complainants, but somehow without abridging the right of defendants to a fair trial.

In 2010, Justice Minister Simon Power asked the Law Commission to investigate whether an inquisitorial system should be used in sexual offending and child abuse cases. The commission was also asked to clarify just what should constitute positive consent, and whether evidence about sexual history should require the judge’s explicit agreement before being admissible. Little in the way of change has transpired.

The need remains for the courts, and police, to get the relevant balances right.

Meanwhile, the Roast Busters crew and their ilk are still out there.