10 guilty people go free than one innocent person is found guilty.’’
Recent parliamentary alumni Chris Finlayson was Attorney-General when the former National Government set up the Sexual Violence Pilot Court in 2016. Finlayson says he’s worried by the very low number of victims willing to come forward and report, and in favour of finding better paths to justice, such as marae hearings.
But he also refuses to support a change in the burden of proof.
‘‘It’s one of those iron-clad provisions of criminal law, and I wouldn’t tinker with it at all.’’
THE JURY DELIBERATIONS
Juror A quickly realised she was the only one who believed the young woman had been assaulted. ‘‘One of the men said he actually believed her too, but there was no evidence. I said, ‘what about her testimony’? ‘That’s not evidence’, he said.’’
She asked her fellow jurors what evidence they’d need, to believe the young woman’s story.
‘‘They said, four things. She had to have screamed at the time. She had to have reported immediately to police. They wanted physical evidence, blood on her underwear; and they wanted a witness, right there.’’
A juror in a different case, ‘‘Juror B’’, also has grave concerns about a jury’s ability to deliver real justice. The rape trial she served on, in Wellington in 2017, ended with a conviction but the jurors struggled to understand their role.
Juror B says the physical marks left on the woman, and a string of text messages admitted as evidence were compelling, but many on the jury seemed hung up over whether she had screamed or fought her attacker.
Juror A was infuriated by the bias shown in her jury room.
‘‘One man said, ‘What I want to know is, was she a virgin?’ The older woman was saying ‘You know in my day they would call her a ‘‘trollop’’ and say she was teasing’.’’
Juror A says she still shakes with anger when she thinks about the lack of interest her fellow jurors displayed – ‘‘they were just interested in confirming their own views, and getting out of there’’.
The accused was acquitted on all counts. It’s not so much the result that haunts her, J says, it’s the court process, which heaps one layer of suffering and victimisation on top of another. Even knowing why the jury reached its verdicts would have helped, but instead she will live with questions forever. There was no debrief; ‘‘the police, the Crown, they didn’t care any more’’.
The verdict for the broader criminal justice system in cases of sexual violence – for most of our experts at least – is ‘‘guilty’’, with some caveats.
Not everyone is suggesting the current system be sent down for life with no parole. But most we spoke to think urgent change is needed. So what would a new frontier for sex crime justice look like?
Pihama takes the hardest line: she wants to see marae justice as the preferred option for Ma¯ ori.
McPhillips suspects radical change will be hard to come by, but the Sexual Violence Pilot Courts is better than nothing.
Joychild’s vision for the criminal courts is likely to be controversial: ‘‘I would have two judges. I’d allow the victim to have their own lawyer.’’
Little says he’s committed to spending his personal political capital to make change – ‘‘I’ve told the Prime Minister I’m happy to take that fight on’’ – but reforming the adversarial system is a ‘‘huge leap’’ that would take a long time.
Complainant J wants better information and support for victims, both pre-and-post verdict.
‘‘I would prefer no jury – these people are not qualified to make decisions like this, especially in cases of sexual assault. Giving victims a report explaining the rationale as to why they didn’t believe them would also be great.’’
She suggests an option for a ‘‘not proven’’ verdict would be an improvement for victims over the status quo, with guilty, or not guilty as the only alternatives.
‘‘Saying he’s not guilty, means he got away with it completely. I’m devastated. For it to come to this, it’s like – what do I do now?’’