Fears that overhaul of rape trials will punish Ma¯ori men
The Government is being warned that proposals to overhaul how rape trials are run would see more innocent Ma¯ori men in jail.
The caution comes from Lady Heeni Phillips-Williams, co-president of the Sir Peter Williams QC Penal Reform League and a criminal lawyer, in a letter she penned to Prime Minister Jacinda Ardern which has been obtained by the Herald.
“I also write as the relative of two innocent young males from Nga¯puhi who, falsely accused, sadly went through several months of incarceration on sexual violation charges,” she said in her letter.
“It was a traumatising and frightening experience for both males and their wha¯nau — who were later freed without conviction . . . You, I trust, will be eager to prevent such tragedies damaging more Ma¯ori.”
Phillips-Williams told the Herald that Ma¯ori men would bear the brunt because they were more likely to be arrested by police, more likely to rely on legal aid, and more likely to be subjected to biases throughout the justice system.
Her comments take aim at the Sexual Violence Legislation Bill, which stalled last term due to NZ First but has passed its second reading and is awaiting its committee stage.
The bill is hailed as long overdue by victims’ advocates as making the process less traumatic for complainants in a way that would encourage them to come forward.
But it has divided the legal and justice fraternity. Crown Law, police, academics, the Law Commission and victim advocates support it but it is opposed by the NZ Bar Association, the Public Defence Service, the Criminal Bar Association and judges on the Law Commission’s judicial advisory panel and from the Sexual Violence Court pilot.
It is expected to pass with the support of Labour and the Greens but the National Party hopes to change two contentious clauses both
highlighted in Phillips-Williams’ letter.
The first would make it harder for the sexual history between accused and accuser to be used as evidence, while the second would entitle complainants to be cross-examined via pre-recorded video before a trial.
Phillips-Williams said such sexual history — including their common routines and past practices — was often relevant to how an accused might have reasonable grounds for consent.
The “somewhat diffuse and difficult to isolate rationale” for the proposal, she said in her letter, was to save complainants the embarrassment of being questioned about their sexual history but it would lead to a greater likelihood of innocent men being convicted.
Pre-recorded cross-examination, instead of protecting complainants from an intimidating courtroom setting, would subject them to a “doubleordeal” when they were crossexamined again at trial following new evidence emerging, she said.
She also took a swipe at Green MP Jan Logie, who championed the bill last parliamentary term when she was Justice Under-Secretary.
“One must point out that she [Logie] is not legally trained and has therefore obviously not run even one criminal case in court, but assures the public of certitude about the future ‘safe’ effects of this bill.
“She [Logie] will have more Ma¯ori males in prison, through their rights being obliterated. Not many will be able to afford a QC. This bill is shameless and shameful.”
Logie said she wasn’t fazed about being singled out for criticism.
“It can be convenient to create an enemy and I think that’s what’s happening in this situation.” She said it was a Government bill “soundly based on evidence”, and would improve the system for defendants as well as complainants.
The status quo was “untenable”, she said, noting government statistics that show less than a third of sexual violence cases reported to police make it to court, and only about one in 10 see a conviction.
She has described the current law as allowing people to get away with rape; the Justice Ministry estimates the bill would likely lead to an extra eight to 20 prison sentences a year.
A spokesman for the Prime Minister referred the Herald to Justice Minister Kris Faafoi, who said the status quo was unacceptable rates of sexual violence, low numbers of complaints and low conviction rates.
The proposed changes, he said, are “well-founded in both principle and in evidence from comparable jurisdictions that indicates they can function fairly, without eroding fundamental fair trial rights”.