The Sexual Violence Bill trundles ever closer to becoming law. The sentiments behind it appear noble: to ease the trauma of the trial process for complainants and to correct perceived low conviction rates. However, it is really responding to pressure to jail more perpetrators. A 2019 Ministry of Justice report claimed only eleven percent of sexual crimes reported to police lead to conviction, and just six percent to a jail sentence.
Yet most criminal lawyers are opposed, and not only on the defence side. In the bill's second reading in Parliament, former prosecutor Simon Bridges spoke passionately against its two sinister clauses. He assured the House that he supports the broad intention of the bill in limiting courtroom “retraumatisation” but warned that those lethal clauses would put even more innocent men in jail.
Clause eight treats evidence outlining a previous relationship between complainant and defendant as presumptively inadmissable, even when it is – as Bridges put it – “relevant and probitive”. Clause fourteen is probably more dangerous. Complainants can already video-record their testimony in advance of trial. However, the new law would require the defence to cross-examine any complainant soon after that early testimony, which would be months – or even years – before the main issues of the case have emerged. It would compel the defence to play its hand immediately, giving the prosecution time to refine its case, coach the complainant and assure conviction. In effect, these clauses brand acquittals as a system failure and nudge sexual prosecutions ever closer to show trials.
And why not, when so many perpetrators apparently escape justice? Some do, as with all crimes, and that makes the rage understandable. Yet no system of justice can be based on a blanket assumption that one side has a monopoly on truth. Any suggestion that some complaints are false tends to provoke straw man responses from women's support groups. If only eleven percent of complaints lead to conviction, am I suggesting that eighty-nine percent of accusers are lying? Not at all. The private nature of most sexual crime makes it hard to prosecute, and there is no doubt that some sexual perpetrators get away with it. There are cases when “not guilty” is the appropriate verdict, but the defendant is not innocent. In any case, 'lie' is a loaded word that implies malice. Some wrongful accusers are certainly malicious or vengeful, but others are mentally ill, deluded or simply mistaken. Many tell fibs that extract them from a sticky situation but then get out of hand.
If I suggest some accusers are untruthful, does that make me a superannuated misogynist who considers women inherently flighty and untrustworthy? Not at all. It just means I deny that untruthfulness is a trait produced solely by the y chromosome. People don't always tell the truth, especially in matters as complex as sex. The #metoo movement implores that women be believed. But which women? Police tend to charge immediately after a sexual accusation is made, without any investigation. Sometimes the women we should automatically believe are the desperate mothers, wives, daughters and sisters who plead with the police just to look at the accused man's cellphone or pay records, which may prove consent - or he wasn't even there – and allow the poor family to put sleep back into their lives.
The great imponderable behind this legislation, then, is the frequency of false sexual allegations. No one can know the figure, but all evidence points to it being far higher than is assumed by those who insist that they're rare. This is because – if they consider numbers at all – they count only known and exposed false accusers, which is a disreputable way of uncovering data in a legal field notorious for its uncertainty. In fact, baseless sexual allegations remain on file as valid complaints which so far lack sufficient evidence to proceed to prosecution. This means that, with impressive statistical sleight of hand, the denialists can count these in their numbers of accusations which are reported to police but don't proceed to court.
Even worse, the bill's advocates may count only the minuscule number of false accusers who have been convicted. There's really no such thing as perjury any more, and it's no secret that even known false accusers are almost never prosecuted, out of “public interest”. In fact, they're given two discrete public interest escape doors. The primary one is personal: each false accuser has “issues” or is “vulnerable”, as decided after a moment's consideration by those experts in mental health – the police. The secondary one is the broader social consequence: prosecuting false accusers will supposedly dissuade genuine victims from reporting. This official leniency is given too little thought to be considered policy; it's simply the way it is.
Police used to openly acknowledge the false allegation problem. In 2004 The Manawatu Evening Standard quoted detective sergeant Dave Clifford as saying that false sexual assault claims had become so frequent that “police will start prosecuting people who try to use a fictitious assault as a reason for coming home late.” This looks like a quaint relic now, not because false allegations have magically become rarer but because the official narrative has been so transformed that any such statement would provoke an outraged demand for the dinosaur's demotion. Retired detectives have less to lose and may tell the truth.
As far as I am aware, no reputable research has been done into false allegation numbers in New Zealand. However, two thorough but very different studies overseas produced astonishingly similar results. Both Eugene Kanin in the USA and Erich Elsner/Wiebke Steffen in Germany estimated false rape accusations at around a third of the total. The German study analysed all 1754 rape accusations made in Bavaria in 2000. Surprisingly, female detectives were marginally more skeptical about complainants' stories than their male colleagues, so there was no evidence of a gender bias. Of course, New Zealand is different from the USA and Germany, so figures here may be lower – or higher.
It isn't only the guilty who have reason to tremble at a sexual accusation, because innocence doesn't guarantee acquittal. Changes to the Evidence Act in the 1980s allowed that judges no longer warn juries not to convict on the uncorroborated evidence of the complainant, emboldening police to prosecute in “she said/he said” cases. There is pressure for judges to steer juries away from alleged misconceptions about sexual crime, such as the expectation that genuine victims should physically resist and should report the crime promptly. Simon Bridges accepts that it's reasonable for juries to be reminded of other misconceptions. The standard notion of “stranger rape” is now considered less common than rape by an acquaintance, for example.
However, having judges in effect tell juries what to think is a slippery slope, because the very point of the jury system is to place faith in ordinary citizens to be independent in the face of overwhelming state power. In any case, Bridges may underestimate the public's present understanding of these so-called rape myths. A recent survey by UK professor Cheryl Thomas QC questioned 771 actual jurors just after they had delivered verdicts. Thomas reported that “The overwhelming majority of jurors do not believe that rape must leave bruises or marks, that a person will always fight back when being raped, that dressing or acting provocatively or going out alone at night is inviting rape...or that rapes will always be reported immediately.”
We can't know how specific jurors will think. Perhaps they are in fact more susceptible to myths that produce not false acquittals but false convictions in sexual cases. For example, it may be that many jurors have such naive faith in our justice system that they assume a case is unlikely to come to court unless the allegation is true. If judges need to interfere, perhaps we should require them in every sexual case to point out to juries the common myth that complainants have no reason to make it up. In fact, there are many reasons, including expediency, guilt, jealousy, shame, malice, an urge to control and a craving for attention or sympathy. A common explanation for complaints here in New Zealand is that she is mentally unstable and has visited a counsellor, who unsurprisingly diagnosed repressed memories of childhood sexual abuse and was entitled to offer the client ACC-funded therapy sessions. Any chance of this becoming a standard pre-trial warning?
I know that “Jane”, the daughter of a friend – the woman who accused me and others of raping her when she was young – was counselled in this way. However, I can't claim to know for sure which of these reasons prompted her allegation. Thankfully, after a stressful seven-month wait I wasn't charged. What I do know is that if clause fourteen of the proposed legislation had been in place at the time, it would have given the police the confidence to prosecute me and my co-accused, because there would have been a fair chance that a finely-honed and teary court performance by my false accuser would win over a compliant jury. I'd now have about nine years left to run of a likely thirteen-year sentence, with no chance of parole because I'd be too pigheaded to admit guilt.
This is disturbing enough, but the fact that Jane and I had never met makes it a terrifying precedent. The presumption of innocence would have been flipped neatly on its head and I'd have been in the logically and legally absurd position of having to prove a negative. If this topsy-turvy vision of justice is what our parliamentarians seek, they should support the Sexual Violence Bill in its current form.