Grace Millane murder trial: the new ‘she asked for it’
At times, it looked like an enlightened step forward for sexual violence justice. At others it felt like a 1990s rape trial. Alison Mau reports.
‘Jurors are judges – judges of facts.’’ It’s day one, and with measured pace Justice Simon Moore lays out the landscape for the jury. The facts these 12 people will weigh in this case will be how, when and why British backpacker Grace Millane died in a rented Queen St apartment last summer.
This will be a trial about sex. Sex between two consenting people that ended in tragedy, according to the 27-year-old defendant’s legal team. Or, according to the Crown, knowingly lethal sex including strangulation that left Millane on the floor, bleeding from the nose and without help or mercy.
‘She asked him to do it’
The very first piece of evidence to be introduced in the trial is a statement from Millane’s father, David.
Each day, he and his wife Gillian file into the courtroom with members of the police team, led by Detective Inspector Scott Beard, and sit slightly to the left of centre in the front row of the public gallery.
David Millane watches as his words are read to the court by prosecutor Robin McCoubrey.
Her name was Grace Emmie but they often called her Gracie. She was their youngest child, got on well with brothers Michael and Declan, and was particularly close to her mum. She was in touch at least every other day on her travels and sent her family a final picture of the Christmas tree underneath the Sky Tower on December 1, the night she died.
By the time prosecution and defence wrap their cases 16 gruelling days later, knowing everything about Millane has become a focal point of pain for the family, and anger in the wider community. Gillian Millane is said to have asked why it seemed her daughter was on trial, rather than the accused.
Indeed, when opening the defence case, lawyer Ron Mansfield repeatedly tells the jury this trial is not about the blaming and shaming of Grace Millane.
On the other hand, the defence also spends swaths of time examining her past sex life, revealing her preferences, and what she would do in the bedroom with ex-partners. These things are relevant, defence counsel say, because it shows Millane died as a result of consensual sex gone wrong.
The defence’s case rests mainly on the premise that she asked the accused to put his hands around her neck – ‘‘breath play’’ – during sex in that room. She asked for it.
The inference is that she was at least partially culpable for what happened to her. This is an example of the kind of victim-blaming culture that experts say puts survivors of sexual violence off coming forward.
‘‘It’s slippery,’’ says Auckland University gender and sexual politics Professor Nicola Gavey, during a lunch break at the High Court.
‘‘It’s that very modern paradox where women are simultaneously expected and encouraged to be sexually agentic – and then, if they are, they are negatively judged, shamed and punished if something goes wrong.’’
Gavey says it’s not that Millane would have anything to be ashamed of in the information the defence has produced; but the excruciating amount of detail is a violation nevertheless.
Researcher Jess Berentson-Shaw says she found it hard watching the defence use ‘‘every dominant and shallow narrative’’ about sexual violence to trigger prejudices and misconceptions about sexual violence.
Strangulation, BDSM and the porn problem
As New Zealand attempts to get control of a runaway issue with intimate partner violence, non-fatal strangulation has emerged as its most serious marker. Victims who’ve been strangled are seven times more likely to eventually die at the hands of their partner or former partner.
Until December last year, strangulation was not a stand-alone offence, instead rolled into the Family Violence Act with a number of other forms of assault. When the act was amended, the floodgates opened.
A man was in court on charges the very day the legislation was enacted. By September this year, the average number charged with strangulation had risen to almost six a day.
Experts in BDSM say strangulation that can kill, maim and terrorise is a world away from consensual ‘‘breath play’’ – the sex practice that’s gaining favour with increasing numbers of both men and women.
But the two practices – one intended for pleasure, one for terror – crossed paths several times in the course of the trial.
The doctor who conducted Millane’s autopsy cited research that showed deaths from sexual asphyxiation, as opposed to other forms of strangulation, are incredibly rare.
Dee Morgan is a professional counsellor who works within the BDSM landscape. She says the only deaths she has ever heard of in that sphere have come from auto-erotic asphyxiation, which takes place alone, not with a partner.
Morgan says while ‘‘breath play’’ is at the more dangerous end of BDSM practices, informed use of it would never include strangulation. Also, there are many forms of breath play, most of which do not involve placing hands around the neck at all.
She says Millane and her former partner, whose statement was read in court last week as part of the defence’s case, appeared to have done their homework and were aware of safe practices.
The rough sex defence
It’s not difficult to draw a line between the miseducation of a generation via porn and goings-on in the justice system – and the connection is a cause for alarm.
In the UK, an online campaign called We Can’t Consent To This was set up last December to highlight the rise in murderous men using ‘‘rough sex gone wrong’’ as a defence. The campaign found 59 such cases in the UK in recent years. It says the defence has worked in six of the 14 cases which reached trial.
In those cases, the man was either found not guilty or was convicted of the lower-level crime of manslaughter.
The witness the court broke
One of the prosecution’s star witnesses was called to give evidence, and her time on the stand will not easily be forgotten by anyone in the courtroom.
The young woman told the court she had ‘‘matched’’ with Millane’s killer on Tinder. Instead of the promised ‘‘drink in the city’’, she told the court he steered her straight to his apartment.
What followed was, according to her, a terrifying physical struggle in which she almost lost her life.
But defence counsel argued her account was a fabrication.
The witness described in detail how the killer used part of his body to cover her face, so she was unable to breathe, while he pinned her to the bed.
Close to four hours of crossexamination followed. It was brutal – at least for the witness, who broke down repeatedly, moving through polite compliance, confusion, anger and eventually to tears as the grilling continued.
By the end of the cross-examination, Mansfield had done his best to convince the jury the woman had lied about her near-death experience in the room at CityLife. He had demanded she relive the sex act, and the alleged attack, in explicit detail several times. It left the witness sobbing.
The level of trauma experienced by witnesses and complainants in such cases is increasingly scrutinised. A bill before Parliament right now will tighten the rules on how much, and in what manner, complainants are permitted to be questioned.
She didn’t ask for it
Ultimately, the ‘‘she asked for it’’ strategy failed to convince the Millane jury who returned a unanimous verdict of guilty of murder.
The trial has sparked a tide of feeling in the community that the way justice works in the courtroom is not good enough. In trials involving sexual violence the process hurts many more than it needs to, experts say. The witnesses called for this trial would no doubt attest to that.
So might the Millanes. After the verdict, David Millane struggled to hold back his tears, and among his final words was a truth everyone watching will have felt in their gut: ‘‘She did not deserve to be murdered in such a barbaric way on her gap year.’’