Why Sexual Violence Bill’s attempt to fix law falls short
The maltreatment of women, and the disenfranchisement of marginalised groups forever fuels a sense of fire in my belly. That’s why I was initially flabbergasted over NZ First’s opposition to the Sexual Violence Bill. The NZ Bar Association, the Criminal Bar Association, the New Zealand Law Society, the Auckland District Law Society, and a petition by Wellington women lawyers in response to the Wellington Women Lawyers’ Association (who backed the bill) also came out swinging against the legislation. After a closer look, I’m inclined to agree with them.
The petition reads: “The dangers with the proposed changes to the law, in particular, the expansion of section 44 to include the defendant’s sexual experience with the complainant as requiring a heightened threshold, and the making of pre-recorded crossexamination the presumptive method of evidence, are deeply troubling to us”.
Statistics, statistics, statistics
To recap, it’s often quoted that 6-11 per cent of offenders are convicted, and given the number of unreported cases, it is estimated that only 1 per cent of all potential sex crimes result in a conviction. After speaking to Marie Dyhrberg QC, I’ve come around to the idea that the issue isn’t black and white. “How do you measure unreported cases? That’s the thing, they’re
unreported!” In her view, there are competing statistics in this area. A 2019 Ministry of Justice report that examined the outcomes of reported sexual violence between July 2014 and June 2018 revealed 31 per cent of reports resulted in a defendant being criminally prosecuted. Of those, 36 per cent resulted in a conviction, 4 per cent were proven, and didn’t result in a conviction, 26 per cent were discharged, withdrawn or dismissed, and 20 per cent were active and ongoing. Only 9 per cent resulted in an acquittal.
The 6-11 per cent ignores that we do not assume people are guilty just because a complaint was made to police. On that note, Dyhrberg is opposed to describing complainants as victims, or using words like “revictimisation”. “You don’t have a victim until you have a conviction. To describe someone as a victim [or survivor] is assuming the allegations are true.”
Rape myths
As a defence lawyer, Dyhrberg sees a lot of flawed cases going to court. She uses the example of a case where she represented a Middle Eastern taxi driver who was charged with rape. There was camera footage suggesting otherwise, but police didn’t look at it for six weeks. Once they viewed the footage they withdrew the charges. “He could have been imprisoned for 12 to 14 years, deported as a rapist, he would have never got a good wife, and his life would have been ruined forever.”
I’m inclined to think that the same goes for women who are sexually assaulted, but that’s a presumption in and of itself and “they’re not sitting next to a person in uniform . . . nor do they have the option to testify behind a screen”.
In her view, the system is already weighted in favour of a complainant. And myths — that you can discuss what a complainant is wearing, or her sexual history — doesn’t happen in practice. “Judges don’t allow us to ask terrible questions, and I’m of the view if I were to do so a jury isn’t going to like me, which could negatively affect my client.”
It’s not the concept, it’s the provisions
Dyhrberg et al aren’t opposed to the legislation per se, but some provisions are unworkable. The purpose behind the pre-trial recorded cross-examination was to end a complainant’s role in a trial as early as possible.
But Dyhrberg says a trial is a living thing, and information might be disclosed the morning thereof. What it means is that it may be inevitable that the complainant has to be crossexamined twice, which was described in the Court of Appeal decision of M v The
Queen. The judgment said that new matters “almost inevitably” came to light after the pre-recorded crossexamination but before trial.
And on the issue of Section 44, which heightens the threshold to use evidence relating to the defendant’s sexual experience with the complainant — this is grossly unfair says Defence Lawyers Association co-chair Elizabeth Hall. The reasoning behind the provision is to deter an assumption that just because a woman has consented previously she couldn’t possibly have been raped. That’s not what this evidence is doing, “it’s the defendant saying ‘look we’ve had sex in the same certain way before, that’s part of why I thought it was consensual”’.
To prove sexual violation, the Crown has to firstly prove there was no consent, and then secondly that the defendant didn’t believe on reasonable grounds that there was consent, Hall said. The context and the circumstances can be entirely important to whether the prosecution can prove the second element. The current law is such that the context of the relationship (including any previous sexual experience with the defendant) has to be relevant in order to be used anyway (to be admissible), which is appropriate.
“No question can be asked of the complainant unless the judge agrees that it is relevant. What this bill proposes is that previous sexual experience with the defendant can be relevant, but the lawyer still can’t ask the complainant about it and the person accused still can’t give evidence about it. The bill therefore proposes that we withhold relevant evidence from the fact-finder.”
What lawyers hold dear is the fundamental right to a fair trial, she said. “Let’s be frank, the underlying issue is that there’s a view that conviction rates are too low, so [the Government has said] let’s make trials slightly less fair by keeping out relevant evidence and by removing the right to silence, so more people get convicted and then also maybe more women will come forward if they see people being convicted more.
“This of course is deplorable to any lawyer as we don’t measure success on how many convictions there are.”
Why is there an obsession with the presumption of innocence? After some digging, the “golden thread” connecting the criminal burden of proof (having to prove a case beyond reasonable doubt) and the presumption of innocence stems from the UK House of Lords’ 1953 decision, Woolmington v DPP.
Essentially a new mother, who had given birth just a few months after her marriage to Woolmington, after “quarrelling” decided to leave him and move in with her mother. Woolmington came to the house, said “are you going to come back home” and a shot was fired, leaving the 17-yearold dead. Woolmington claimed he planned to produce a shotgun — “[to frighten] her into coming back to him by causing her to think he was going to commit suicide”. He claimed that in the process of executing this plan, the wife died by pure accident.
After his arrest, Woolmington said: “I want to say nothing, except I done it, and they can do what they like with me. It was jealousy I suppose. Her mother enticed her away from me. I done all I could to get her back.”
The conviction was quashed, and Woolmington was acquitted. What does it say about our society that the “golden thread” dealt with a case involving domestic violence? Perhaps it’s just an interesting point of information.
The underlying issue is that there’s a view that conviction rates are too low. Marie Dyhrberg QC