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.
7 comments:
Rather than look for a solution which promotes the fairest outcome for all, as best as the law can, in today's social climate one side is picked as victims and the other side as bad guys and the rules are skewed to give the preferred outcome.
This applies to many issues which have become polarised into a right and wrong camp. There's no room for the middle ground so inevitably there will be casualties.
If you were were not charged, or if charges were dropped, there is nothing to stop charges being relaid.
Unfortunately Peter you are a white man, look middle aged, so you are right at the bottom of the pecking order of 'rights' in our society. Accusations by victim minorities aimed at your section of society must be true....!
Well written Peter. This proposed law change will do nothing to increase a jury's ability to distinguish true from false allegations; quite the contrary because the cherry-picked 'myths' judges will be required to warn about are designed to reduce juries' consideration of matters that might point to falsehood. This law will also make it much easier for liars to forward their allegations with less scrutiny as well as further limiting accused's ability to defend themselves. When a complainant seems to become confused and upset, the questioning will have to stop even though the upset may result from inability to explain contradictions due to falsehood. Dangerous, misandrist law.
A man who has been falsely accused of rape has been accused of being one of life’s most despicable persons. His own children may be afraid to hug him. While in prison awaiting trial, he may lose job, house and marriage. His “past” will follow him forever, even if he relocates. There will always be those who believe there is no smoke without fire.
In an emotional sense, he’s the one who’s been raped. His whole life will be ruined, just as the life of a woman who has been raped is ruined. In all fairness, a woman bringing a false rape allegation should attract the same penalty as her alleged attacker had he been found guilty.
How prevalent are false rape complaints? The simple answer is that we don’t know. Little academic research exists in this area.
How dare anyone question the feminist line: “Rape is just part of how ‘they’ [men] treat ‘us’ as woman?”
The few scholarly investigations that have been undertaken suggest that false allegations could make up between 30 – 60 percent of all rape complaints.
False doesn’t mean “unable to be substantiated,” but demonstrably false according to a rigorous set of criteria.
The most reliable study, done in the US military, showed that false allegations were “instrumental.” They were typically made out of a desire for attention, anger or revenge, or to cover up behaviour deemed "inappropriate" once others knew it had occurred.
They allowed a woman to tell her husband: “I didn't set out to cheat on you, I was raped.”
They allowed a young woman living off-base to tell her parents: “I didn’t stay late on base and have unplanned sex with someone in my unit because I got drunk, I was raped.”
They allowed a female naval rating to say: “It didn’t seem like a good idea at the time to have it away with three guys in the ship’s store cupboard, I was raped.”
They allowed a girl who had consensual sex with her boyfriend, who then dumped her after they’d slept together, to get her own back. While she may have “felt raped” she clearly wasn’t.
Based on the motives for false accusations identified in the US military study, at least some of the young women claiming rape at the hands of the Roastbusters gang may only have decided they’d been sexually assaulted after the gang plastered their names and details of what they’d done all over Facebook.
Feminists interpret any difficulties that the Police and Courts might have in prosecuting a rape complaint as part of a patriarchal conspiracy to hand men a “freedom to rape” card.
Unless someone has actually observed a rape in consummation or there is evidence of genital assault accompanied by DNA evidence, proving rape usually comes down to one person’s word against another’s.
If DNA is present but no signs of physical violence, this might mean one of several things: [1] the complainant submitted to her attacker because she was scared; [2] the complainant was unconscious and incapable of giving informed consent; or [3] consensual sex occurred which, for whatever reason, was later regretted by the complainant.
This is precisely why we have a trial and why the sexual histories of both parties, as well as the events leading up to the alleged incident, must be thoroughly ventilated in Court.
A 14 year old girl with a track record of getting drunk at parties and having sex with random guys is way less convincing to a jury than another young woman of the same age who has never even been on a date.
A young man with pierced lips, backwards baseball cap and half-mast pants showing his boxer shorts, who boasts online about stupefying underage girls then taking advantage of their condition is far less plausible to a jury than a young man who has just broken up with his first girlfriend after three years because he met someone else he liked better, and did so in a clumsy, hurtful manner.
Any physical evidence of sexual assault against the Roastbusters gang is by now long gone. Their Facebook bragging can be explained away by a defence lawyer as a status-seeking fabrication. The only way the gang will be convicted is if enough young women come forward alleging the same thing, then convince a jury by sheer weight of numbers they are telling the truth.
These young women ought to be able to be quizzed by defence counsel about their sexual history. They can also expect to be asked what they did that might have contributed to the alleged situation.
This is not a male conspiracy to deny them justice, but due process.
ENDS
Good, thoughtful comments. It is a sad reality that sexual crimes are difficult to prove because there were usually no witnesses. That's not a good reason for making it easier to achieve convictions on the same inadequate evidence. We don't lower standards of evidence for other crimes such as arson in which evidence is often destroyed by the fire, so why should we do so for sexual allegations? Answer: because feminists have demanded it. The Sexual Violence Bill is just the latest in a decades-long history of law changes that erode justice for those accused of sexual crimes. Allowing unlimited time for adults to make their allegations ignores the research on memory fallibility and renders the accused unable to recall alibi evidence or find alibi witnesses. Allowing prosecution at all on the basis of nothing but a complainant's allegations can never be sound justice. Adults should be expected to bring their evidence of injuries, DNA etc to police while such evidence still exists rather than expecting to be simply believed such evidence once existed. If you were to go to police complaining that 1, 2, 5 or 30 years earlier you saw person X running off with stuff just burgled from your house, the police would regretfully inform you that you should have reported it at the time and there's no way for them to prosecute now without corroborating evidence. Why should it be any different for sexual allegations? Answer: Because it's almost all only men who will suffer from the poor justice, and men don't matter much. Allowing evidence-in-chief to be provided via pre-recorded video not done under oath over-emphasizes likely emotionality and exaggeration in first 'disclosures' and removes opportunity to uncover dishonesty through inconsistencies between the initial story and that provided subsequently under oath in Court. Limiting cross-examination questions regarding the sexual history and therefore the character and trustworthiness of the complainant, while allowing 'propensity evidence' to besmirch the character of the accused is blatant tipping of justice scales, and the currently proposed Bill plans to make that tipping even easier.
Post a Comment