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Labour Party Policy on Sexual Violence – A Closer Look

Written By: - Date published: 12:32 pm, July 14th, 2014 - 71 comments
Categories: law, sexism - Tags: ,

This past week has seen both mainstream media and political blogs of all persuasions, opine on the reversal of the burden of proof in sexual offence cases, based primarily on Andrew Little’s sound bites (or somewhat unsound bites) on Labour’s Policy “Eliminating Violence Against Women & Children”.

This isn’t a post about whether Little’s media interactions were at fault for the ensuing outrage that occurred, but it is an attempt to perhaps redirect the conversation back to the policy itself, its background, and put to rest an urban myth in the making – that the Labour Party Policy will see the presumption of innocence nullified under a reversed burden of proof.

Stretching out behind and informing Labour’s Policy, is a long trail of Inquiries, Taskforce research, and Law Commission reports that goes something like this:

  • 2007, the Commission of Enquiry into Police Conduct Report by Margaret Bazley was released. Undertaken after the Louise Nicholas debacle, it led to a further investigation by the Law Commission into evidential law.
  • Following recommendations within that report, the Government set up a “Taskforce for Action on Sexual Violence”. Multiple specialist groups and Government Departments researched specific areas, and the following were identified and earmarked as proposals for public submission:
    1. The addition of a positive definition of consent. NZ law provides for a number of circumstances in which consent is not deemed to be present, but no statutory definition of what constitutes consent. The preliminary proposal made, was to add a definition of consent containing the concepts of freedom, choice and capacity to make that choice – something a judge may already direct a jury to consider.
    2. Adding further guidance on the reasonable belief test.
    3. An extension of the rape shield laws, to disallow any previous sexual history between complainant and defendant to be raised, without prior Court Approval.
    4. A recommendation that the Law Commission undertake an inquiry into alternative trial processes, including the potential for specialist sexual violence courts with an emphasis on Restorative Justice models and an investigation into Adverserial v/s Inquisatorial models.

It’s important I think, to point out that a suggestion made during the Taskforce enquiry to reverse the burden of proof was not proposed, and was not investigated by the Law Commission enquiry that would follow. It was never on the table.

94. This has not been proposed as an option because a review of the burden of proof would raise major Bill of Rights concerns, such as the right to be presumed innocent until proven guilty.”

  • Fast forwarding to 2010 brings us to then Justice Minister Simon Power’s directive to the Law Commission to pick up where the Taskforce into Sexual Violence had left off, and inquire into alternative trial procedures.
  • While much recent media discussion has focussed on the Adversarial v/s Inquisitorial models (which received very mixed support from stakeholder’s submissions), what has been lost in the discussion, is the overwhelming support from all stakeholder’s for Specialist Sexual Violence Courts which would take a Restorative Justice Model as their starting point (proposal’s 5 & 6).

The Labour Party Policy proposes that the Law Commission complete its report. The Policy maps to both the proposals contained within the Taskforce for Sexual Violence discussion paper, and the Law Commissions proposals which received the highest levels of support from stakeholders submissions.

Finally, a bit of a plea. Sexual Violence is a sensitive issue. The least that ought be done, by those releasing policy around it; the media reporting it; the bloggers opining on it; and us, the individual’s commenting on it; the least we can do is try and make sure we have our facts in order first. Please? (And that means you too Andrew Little).

NZ Femme

71 comments on “Labour Party Policy on Sexual Violence – A Closer Look”

  1. RedLogix 1

    Thank you – a timely explanation NZF.

    I would like to see more about the proposals which received the highest levels of support from stakeholders submissions. It would be good for this thread to avoid rehashing old ground we’ve all been over before – and to explore the constructive alternatives being proposed.

    • NZ Femme 1.1

      Hi RedLogix

      I’ve copied and pasted from the Law Commission’s summary doc (Note: this is not a final report, work on the report was halted by Judith Collins in 2012)

      These proposals received very strong support

      4F: Child protection orders

      5: Specialist sexual violence court (post-guilty plea)

      6: Alternative process for sexual offence cases (certain offences resolved outside the Courts)

      These proposals received strong support:

      3B:Written reasons to be given for verdict

      3C:Following guilty verdict, judge and jurors decide factual basis on which
      sentencing should proceed, but judge imposes sentence

      3D: Specialist judges for sexual offence cases

      3E: Accredited counsel for sexual offence cases

      4E:Independent Sexual Violence Advisors (for complainants)

      It’s worth reading through the above categories in the report itself. Numbers 5 & 6 specifically refer to Restorative Justice Models.

      http://www.lawcom.govt.nz/sites/default/files/publications/2012/12/alternative_trial_and_pre-trial_processes_submissions_summary.pdf

      (I know it’s a bit tiresome to have to scroll through the whole doc, but it’s well worth it, and contains nuances that I can’t do justice to here – at least not tonight.)

  2. Tom Jackson 2

    An extension of the rape shield laws, to disallow any previous sexual history between complainant and defendant to be raised, without prior Court Approval.

    Is this a change, and if so, is it wise? Surely it should always be the right of the victim to raise their own prior sexual history without the permission of the court. There are obvious cases where this would be useful in making the complaint of rape more credible, such as showing that claims that the complainant had consented would be radically discontinuous with past sexual behaviour.

    Can the victim do this now? Or would it automatically entitle the defence to raise it without victims’ consent. I could see it being fair for the victim being allowed to raise it if they thought it would help the case, but not the other way around (the obvious difference being that the other way around would likely traumatise the complainant – so there’s an obvious difference).

    • karol 2.1

      But once you open the door to complainants using that as defense, anyone that doesn’t use that defense will be assumed to have a history they are ashamed of – will work against them. So, it would ultimately work towards the erroneous use of survivors’ pasts to discredit them.

      • Tom Jackson 2.1.1

        Lots of things are like that. I’ve been on a jury and specifically been instructed not to make similar inferences.

      • the pigman 2.1.2

        Talk about reversing the onus! It is not on the complainant to make any “defense”… they are merely a witness for the prosecution.

        The rape shield laws should generally work to the advantage of complainants, because a high percentage of rape victims already know their complainants (and may have had consenting sexual acts with them in the past).

        trigger warning
        Take the example of a spurned lover who stalks his ex-partner, maybe lets himself into her house, and attacks her. Or marital rape. The men in that scenario are advantaged by raising their previous conduct because they claim that they previously had consenting sexual intercourse with the complainant, where consent obviously existed even though it wasn’t explicitly communicated. His ability to raise that past conduct in court works to establish his reasonable belief that he had consent.

    • Lanthanide 2.2

      The victim should be very cautious in what of their past history they want to bring up in court, because it could paint a very biased picture if they only report things that support their case, and fail to report things that work against their case.

      • Tracey 2.2.1

        victims dont run a case, the crown does, so it would be the crown being selective. A defendant does run their case so can be as selective as they like. Recent example is pistorius doing a video showing him walking on his stumps, probable walking much better than his team hoped, so they didnt put it forward, even tho it is important information, if the truth were the purpose.

        • NZ Femme 2.2.1.1

          That’s the the crux of it Tracey 🙂

          Complainants have been described as “evidentiary fodder” in one of the reports I was reading recently.

          Complainants are simply Crown Witness’s when it comes to actual trial time.

    • NZ Femme 2.3

      Hi Tom, yes, this is new. Currently, the sexual history between defendant and compainant can be raised by the defence during cross examination regardless of relevance.

      The proposal would mean that the Judge would decide on its relevance before allowing it, in the same way the rape shield law already applies to the general sexual history of the complainant.

  3. just saying 3

    …the least we can do is try and make sure we have our facts in order first.

    Hear hear.

    Great post NZ femme. Thanks for making this chrystal-clear.

    Unfortuately the truth is not in every group’s best political interests. (Andrew Little seems to be a bit confused about which side he is on, or maybe he’s just confused in general).

  4. blue leopard 4

    Yes very good article thanks NZ Femme.

    Excellent point at the end too – Labour, in particular, needs to really get more switched on and disciplined with their messaging . If there is anything jeopardizing a win for the left I put it solidly on this weakness in Labour (not their policies the way they seem to be weak with staying on message).

    I hope many Labour MPs read this thread and clean up their act accordingly.

    The issues arising in this year’s election are too important to be ruined by an ill-disciplined bunch of over-confident wannabees. Just remember Labour – we have plenty of options to vote for this year, so get with the program or don’t front for press releases and leave speaking with the public to those who are capable of doing so competently.

  5. Zorr 5

    Personally, the way I have been explaining it is that, up until now, the law assumes that the defendant is innocent and that consent was given. It is up to the victim to prove otherwise.

    Under this change, the assumption of consent is removed, and it is on the accused to prove consent. I think this is a very strong move towards a society that no longer relies on implied consent. “She was asking for it” can no longer be a defense unless she was, literally, asking for it.

  6. JonoN 6

    But Labour’s policy on preventing sexual violence includes a specific statement that Labour will consider “amending the definition of consent in instances of sexual violation to ensure it does not impose an unfair burden on victims of violence”. (see https://www.labour.org.nz/sites/default/files/issues/eliminiating-violence-policy.pdf)

    It may not be part of the Law Commission’s report remit, but it’s certainly official Labour Party policy to consider reversing the burden of proof.

    • Zorr 6.1

      The burden of proof on consent

      If consent has actually been given, it shouldn’t be hard for the accused to prove that, should it? It’s time that we moved away from models of implied consent.

      • Lanthanide 6.1.1

        “it shouldn’t be hard for the accused to prove that, should it?”

        Not sure how you’re going to “prove” any spoken agreement between two individuals in a private setting, without witnesses and/or recording devices.

        So yes, it would often be very hard for the accused to prove it.

        • Colonial Viper 6.1.1.1

          There needs to be a standardised and evidentially valid form of consent (usable by both men and women) that is reliable and acceptable by both the police and the courts.

          Whatever is decided upon ideally has to be able to confirm that consent was maintained and not withdrawn by any party, after sexual contact was actually initiated. (Continuing to have intercourse with someone after they have decided to withdraw their consent during the act is of course rape).

          • Mark 6.1.1.1.1

            There seems to be confusion within the caucus on the proposed policy and this is extraordinarily unhelpful when endeavoring to mount a credible election campaign. The public perception for whatever reason is that, under Labour, the burden of proof in Sexual Assault and Rape cases is going to fall on the accused. Now that is not what the policy states but it is the perception and that is a problem that needs to be clearly put to bed by Cunliffe and his senior team members.

        • wtl 6.1.1.2

          I don’t think it would work as you are suggesting. “Prove consent” in used in this context to differentiate it from “implied consent”. The way I see it, “proving consent” doesn’t mean defendant would have to produce documentary evidence that consent was given, but rather means that the defendant would have to indicate that there was some action, verbal or non-verbal, which would have given the defendant a reasonable belief that consent was given.

          This opposed to “implied consent” in which the consent is deemed to be given unless the victim specifically does or says something to indicate refusal of consent (e.g. saying no).

          In other words, “he/she didn’t say no” wouldn’t work as a defense. But if the defendant testifies that the accuser was clearly reciprocating the defendant’s advances (the whole time), then the defendant is “proving consent”.

          Of course it still comes down to who the jury believes, but that is no different from how things are now.

          • Colonial Viper 6.1.1.2.1

            Although what you said is valid, I also suspect that you’d want to be able to clearly prove “beyond reasonable doubt” if you were being accused and looking at the long end of 8+ years in prison. Best not to have any mix ups and uncertainty when the stakes are potentially that high.

            • wtl 6.1.1.2.1.1

              If one is worried that non-verbal cues might be inadequate, asking and obtaining a verbal “yes” would be a clear way for a someone to “prove consent”. If you are arguing that the jury wouldn’t believe the defendant and he/she would still get sent to jail, as I said above, this is no different from how things are at the moment.

              • RedLogix

                But here is the problem.

                Sex is a very common event. Only a very small number of sex acts are problematic – I would hazard a will-arsed guess of less than one in ten thousand.

                A Court trial is essentially a form of test. All tests throw up false positives and false negatives. At present we have biased our testing model so that it throws up a lot of false negatives and discourages people from even invoking the test.

                This is why there is a demand to change the test to reduce the number of false negatives and encourage more people to take the test. Fair enough.

                However unless we are very careful about how we design the new test – there is every chance that the bias will shift towards producing more false positive results. And anyone familiar with Bayesian logic will understand how this – given the overwhelming proportion of sex acts that are quite benign – could result in wholly unintended consequences.

                • wtl

                  While I appreciate you concern with this, I think it is somewhat misplaced.

                  Firstly, according to NZ Femme, currently judges are directing juries to make decisions along the lines of the ‘proven consent’, so any change in law is likely to only be a matter of formalising the current practice, rather than anything new.

                  Secondly, if we consider the possible situations were a defendant is accused of sexual assault and how a change in wording would affect these cases:

                  a) Consent wasn’t given and the accuser knew this. These are clear cases of sexual assault. In theory, the change in wording around consent should not affect this, but in practice it would mean make it easier for the victim to show that they did not consent, and this is a good thing.

                  b) Consent was given and the defendant was false accused. The change in wording wouldn’t affect these cases, as the accuser would simply change their story so the defendant appears to be guilty.

                  c) Consent wasn’t given by the accuser but the defendant thought that it was. These are the cases that would be clearly affected. Here, we have a victim who feels that they were assaulted but a defendant who believes that they are innocent. There are no winners in this situation. Arguments can be made either way as to whether the defendant deserves to be jailed for this. In any case, I think putting the onus on the people to ensure that consent was clearly given (“proven consent”) would not be a bad thing – do you really want to assault someone, even if it was unintentional? For those who are serious about reducing the incidence of sexual assault in our society, taking a small extra step to ensure consent (such as asking your partner) shouldn’t be a hard ask.

                • McFlock

                  The fact is that it is impossible to consider the justice sytem without “unintended consequences” from changes made or changes not made. Making it easier to convict means more innocent people convicted. Making it harder to convict means more guilty people go free. Making it easier to convict might mean people being more careful about who they have sex with and when. And so on.

                  But the isutation that faces us at the moment is that (unless something changes) roughly a quarter of women alive today (and a similar order of magnitude of men) will be sexually assaulted in their lifetime. The lifetime risk of being falsely convicted of rape is nowhere near that level yet, and is unlikely to reach a comparative level even after any review is completed.

                  • RedLogix

                    Quoting the one in four statistic is rather problematic in this context. A spot of googling on it show a lot of people not at all convinced that the number is either reliable or can support all the conclusions people often use it for.

                    But that aside – lets do a simple Bayesian thought experiment.

                    Lets assume a priori that one in ten thousand sexual encounters is actually a criminal rape.

                    Lets modify the legal process so that there is say a 90% chance a trial will get it right, 5% false negative and 5% chance a false positive.

                    Now take 10,000 random sexual encounters and take them to trial. What is the probability that a person convicted of rape in this scenario – is actually a rapist?

                    The possible outcomes are:

                    1. 0.9 actual rapists are convicted
                    2. 0.1 actual rapists are not convicted
                    3. 500 innocent people are convicted.

                    Of course in real life we don’t just take large numbers of sexual encounters to the Courts on a random basis and we rely on the police and court system to pre-select the cases they believe are probably criminal assaults.

                    But it does illustrate how changes to the regime are more potentially fraught than imagined.

                    • wtl

                      Of course in real life we don’t just take large numbers of sexual encounters to the Courts on a random basis and we rely on the police and court system to pre-select the cases they believe are probably criminal assaults.

                      No, the biggest pre-selection filter is the requirement of an accusation of sexual assault. Your Bayesian reasoning is flawed, since the actual population we need to apply the test to is not “sexual encounters” but “sexual encounters in which an accusation of sexual assault is made”.

                    • McFlock

                      what a load of bunk. To
                      heck with the cops, there’s a significant reporting bias towards a true complaint of rape that you’re ignoring in order to “illustrate” your contrived problem.

                    • McFlock

                      actually, with a 90% bias to correct reporting, 10000 accusations mean 9000 true accusations, and a 5% false negative (guilty going free) means 450 guilty going free. 1000 false accusations means 50 innocent people going to gaol from 5% false positive.

                      Don’t know about “bayesian”, but if we’re all just circle-jerking making up numbers…

                    • RedLogix

                      Of course – but that does rather assume “accusation = high probability of guilt”.

                      Which is fair enough where there is a significant barrier or hurdle to cross it is reasonable to assume that an accusation carries a degree of credibility.

                      On the other hand if we change the burden of proof so that accusations get to Court with less scrutiny or challenge – then it’s only reasonable to suggest more dubious and downright false allegations will get through the system.

                      As the numbers above suggest even a small increase in false or unsupportable allegations results in a far larger increase in people facing unjustified and serious charges than most people intuitively assume.

                    • RedLogix

                      McF.

                      No you misread the thought experiment. It takes 10,000 possible encounters at random ie a large sample not biased by someone making an accusation.

                      Bayesian statistics are very nicely explained here:

                      http://betterexplained.com/articles/an-intuitive-and-short-explanation-of-bayes-theorem/

                    • McFlock

                      Which is fair enough where there is a significant barrier or hurdle to cross it is reasonable to assume that an accusation carries a degree of credibility.

                      What, because getting an innocent person imprisoned for rape isn’t a significant barrier for most people?

                    • McFlock

                      Redlogix, taking 10,000 random cases to trial assumes that all sexual encounters have an equal chance of being reported to the police. This is not applicable in any way to the real world.

                    • RedLogix

                      What, because getting an innocent person imprisoned for rape isn’t a significant barrier for most people?

                      What – you are assuming all people make accusations and go to Court in good faith?

                      While the vast majority of people you meet in life won’t do this to you – you only have to meet one.

                      Historically we have always biased the law towards a presumption of innocence for very good reasons; for a start the defendant has far fewer resources than the state and for a second a high rate of false convictions very rapidly undermines trust in the system.

                      Now most crimes are relatively rare. Most nights you don’t get your house entered, your head smashed in, your car goes missing, or your bank account emptied. So when any of events things happen there is a reasonable assumption that it was the result of a crime.

                      But sex happens all the time and almost all of the time it isn’t a crime. Which is why any rate of false positives is a potential issue.

                      At the end of the day McF all I’m trying to demonstrate is that the legal system should be the last resort when dealing with sexual issues. Like many others I believe we would be better served by a more restorative system that worked to putting things right rather than just throwing people in prison.

                    • RedLogix

                      This is not applicable in any way to the real world.

                      That is exactly what I said above.

                      To restate: we reasonably assume that an accusation carries some credibility and then the police, prosecution and Courts test it.

                      What we do not do is automatically leap from accusation to imprisonment. If we did that there would be an astronomically high rate of false convictions (even at relatively low rates of false accusations) and the system would collapse.

                      So in the real world we depend on all these other hurdles to filter out the false accusations for good reasons. And why we should be very cautious in changing that system.

                    • McFlock

                      What, because getting an innocent person imprisoned for rape isn’t a significant barrier for most people?

                      What – you are assuming all people make accusations and go to Court in good faith?

                      Nope, not “all”. Just “most”, like I said. Especially when it comes to sexual assault.

                      While the vast majority of people you meet in life won’t do this to you – you only have to meet one.

                      Sounds a bit familiar: we should keep the abysmal status quo because of schrodinger’s false accuser?

                      By the way, presumtion of innocence is not in danger from Labour’s policy. I think that that’s actually the main point of the post. It’s the bit in bold.

                      At the end of the day McF all I’m trying to demonstrate is that the legal system should be the last resort when dealing with sexual issues. Like many others I believe we would be better served by a more restorative system that worked to putting things right rather than just throwing people in prison.

                      I agree entirely. But before prison or restorative justice we need some sort of process to establish the truth of the matter by some benchmark (I don’t know, how about “beyond reasonable doubt”), preferably with a greater true positive rate than ~1%. The current system doesn’t cut it, so a review is in order. As per the policy.

                      edit: your next comment:

                      What we do not do is automatically leap from accusation to imprisonment. If we did that there would be an astronomically high rate of false convictions (even at relatively low rates of false accusations) and the system would collapse.

                      So in the real world we depend on all these other hurdles to filter out the false accusations for good reasons. And why we should be very cautious in changing that system.

                      Nobody’s suggested that. Yes, a high rate of false convictions is as bad as or worse than a high rate of false acquittals.

                      Nor is anyone suggesting brash arbitrary changes without care or caution.

                    • wtl

                      RL: This is getting repetitive. There is NO CHANGE being considered around the presumption of innocent. Anyone accused of rape is presumed innocent until proven guilty. However, the issue around consent being discussed in this thread is completely logical (at least in my mind) – it simply suggests that the complainant doesn’t need to show that they said “no”, but rather the complainant just needs to state that they didn’t say or indicate “yes”.

                      As I pointed out above, false accusation are completely irrelevant to this. If someone is out to get you, they will simply lie about the whole sexual encounter. They could just as easily do that now – e.g. “I kept saying no but he didn’t listen”.

                      I find the above arguments about it being too onerous to ensure consent to be ridiculous – the main motivation for someone to ensure that they have consent of their partner should be that they don’t unintentionally end up assaulting their partner, not to ensure that they avoid going to jail.

                      Anyway, as this discussion seems to be going nowhere, this will be my last word on the matter unless things take a turn for the better.

                    • RedLogix

                      @wtl

                      While it may seem completely logical to you I really cannot see how it simply suggests that the complainant doesn’t need to show that they said “no”, but rather the complainant just needs to state that they didn’t say or indicate “yes”. by itself would make any difference whatsoever.

                      If you cannot prove you said “no”, then proving you didn’t say “yes” seems equally fraught. On the face of it such a change would be utterly, pointlessly cosmetic.

                      Either someone is deliberately understating their actual intentions – or Labour has clumsily blundered into yet another social minefield for no real gain whatsoever.

                      As I pointed out above, false accusation are completely irrelevant to this. If someone is out to get you, they will simply lie about the whole sexual encounter.

                      True enough – which is why the system will look for some corroborating evidence, a pattern of behavior and the context of any prior or existing relationship.

                    • wtl

                      RL: My use of the word ‘logical’ was merely indicating that would it better reflect reality – if a alleged victim did not say or indicate “yes”, then it clearly means a lack of consent.

                      You are right that in theory such a subtle change might not have a big effect on conviction rates, but unfortunately, given that the current state of affairs is so sad, it probably would make a difference. How many times do we hear things such as “she didn’t say no, so she must have wanted it”, or “she didn’t struggle so how could I know she didn’t want it”. It should be “she kissed me back and before I started I looked in her eyes and she nodded”.

                      Agree that the explanation by Andrew Little was very poor, but I think NZ Femme has done an excellent job of describing Labour’s actual position on the subject (e.g. this post), so I am struggling to see why you are persisting with your current line of argument.

                    • RedLogix

                      so I am struggling to see why you are persisting with your current line of argument.

                      1. My oldest friend worked in Family Law for many decades before giving it away in disgust. Many a tale (sans details of course) I have heard from him.
                      2. I served on a jury some years back on a very challenging false rape/abduction case. Initially completely believable – but partly by good luck and great counsel it became apparent it was a total fabrication.

                      Oddly enough the defendant gave the Police a full interview before his counsel arrived. Usually a very bad mistake. The prosecution played the video as key evidence – yet because he was innocent it ultimately became the strongest link in his defence. Still it was a close run thing.

                      1. I’ve had friends go through the entire ‘goats-head soup’ gibberingly insane false allegation circus. After four years it was ultimately dismissed (with no consequence to the woman involved) – but I saw up close and personal the crippling stress and trauma it caused. I truly do not think I would have lived through it.

                      OK so it’s anecdotal – but these an other events tell me that false allegations are nowhere near as rare as some people would like to think. Just like the idea that women could be violent or could commit sexual offenses was dismissed as nonsense for years.

                    • wtl

                      RL: Okay, fair enough, your personal experiences have given you good reason to be concerned about false accusations. For what it’s worth, if there was any actual move to change the presumption of innocence surrounding sexual assault cases I would also be condemning them. I just don’t think it’s applicable in the current discussion.

            • Tracey 6.1.1.2.1.2

              thats why they also want to define reasonable belief that consent was given.

              no one is suggesting BRD is being messed with

          • NZ Femme 6.1.1.2.2

            “This opposed to “implied consent” in which the consent is deemed to be given unless the victim specifically does or says something to indicate refusal of consent (e.g. saying no).”

            This is a good summing up of the current situation. The Sexual Violence Taskforce discussion document said something similar:

            “One advantage claimed of the law setting out what is required for consent, rather than what does not amount to consent, is that it reinforces the fact that consent is not a pre-existing state, to be refuted by withholding consent.”

            In reality, it’s already recognised that consent is required prior, but adding a positive definition clarifies that further.

            Just to restate, the defendant still has the right to silence, and may choose not to take the stand.

            It would be for the jury to decide whether the prosecution has shown that the defendant didn’t take adequate steps to gain consent. The test here is an objective one -whether an ordinary person would believe that consent had been ascertained under the circumstances described.

      • Tracey 6.1.2

        just as a defendant can claim it was and with no witnesses the victim can only disagree with their impression.

      • RedLogix 6.1.3

        But a Lanth clearly points out – given the private nature of sex – all consent is ultimately implied.

        If you don’t like the ‘implied consent’ model here are some options:

        1. Sign a legal document for every sex act.
        2. Always ensure a before and after recording of all sex acts however minor.
        3. Always have witnesses – eliminate the idea of privacy and require that all sex should be done in a setting where other people are around or aware. (Which while it sound outlandish is probably how things were done in most pre-industrial tribal societies.)
        4. 24/365 recording and monitoring of everything every person does. The technology for this is available.

        Or you could go with the idea that government really should not be the default mechanism for supervising people’s sex lives. That if we are going to have relatively unconstrained sexuality in our society we need to let go a lot of our old ways of thinking it and start talking about equality, education and preventing bad sexual behaviour in the first place.

        And that when things go wrong a Court should be the last resort to sort it out.

        • wtl 6.1.3.1

          See my reply above. It isn’t about “proving consent” in terms of documented evidence, but “proving consent” in the mind of the defendant.

          • RedLogix 6.1.3.1.1

            CV makes the same point I would.

            And how many assaults and rapes remain unchallenged in any way because there is insufficient evidence to support a charge?

            Implied consent has many problems both ways.

        • Populuxe1 6.1.3.2

          ^ This + a billion

    • karol 6.2

      amending doesn’t necessarily mean reversal.

    • NZ Femme 6.3

      Labour’s amendment to the definition of consent maps to the Taskforce for Sexual Violence discussion papers proposal to add a positive definition of consent. As I stated in the post:

      ” NZ law provides for a number of circumstances in which consent is not deemed to be present, but no statutory definition of what constitutes consent. The preliminary proposal made, was to add a definition of consent containing the concepts of freedom, choice and capacity to make that choice – something a judge may already direct a jury to consider.”

      Nothing in the proposed amendment changes the burden of proof; what it would do would enshrine in statute what a Judge may already direct. It essentially provides more clarity.

      For a more nuanced take:

      http://www.justice.govt.nz/policy/supporting-victims/sexual-violence/improvements

    • Tracey 6.4

      what part of the word “definition” are you struggling with? Labour wants a statutory definition for consent so that a defendants actions may be measured against that, possibly minimising the burden on the victim to do all the work convincing the court no consent was given.

      • NZ Femme 6.4.1

        Yes. Also important to add here, that a defendants right to silence remains. There is still no requirement that they take the stand. The burden of proof remains with the prosecution.

  7. Tracey 7

    Thanks NZ Femme

    It is fascinating that national and ACT who fiercely exploit law and order every election stay quite a long way away from sexual crimes.

    I note the SSS had some idiot over from australia banging on about neighbourhood paedophile lists rather than focusing on prevention they tend to prefer being in revenge mode.

    http://tvnz.co.nz/national-news/girls-self-defence-project-fight-closure-4122937

    ” Around five thousand school-aged girls go through the Girls’ Self Defence Project each year. The students learn how to deal with being followed, being attacked and sexual harassment.

    As recently as last month one young woman who had attended the lessons fended off a car full of males.

    The girl’s teacher Alison McPike attributes the skills the girl learnt in the programme to keeping her safe.

    “She said to me if she hadn’t done self defence she wouldn’t have known what to do,” said McPike.

    But now the project faces closure with $400,000 of funding cut due to what the government calls financial restructuring. “

    • Once was Pete 7.1

      The education programme sounds great, but we can’t always protect our kids. My daughter was assaulted as a 7 yr old. I was struck by a couple of things.
      First was, how many convicted offenders there were in the neighbourhood (staggering) and second how good the detective constable was.
      If we had known how many convicted offenders there were in this middle class suburb, we would not have allowed her to walk to the dairy (100 metres away) on her own.
      So I don’t consider Derryn Hinch to be an idiot. Sex offenders have a high recidivism rate. By all means work on educating kids, and treating offenders, but for heavens sake lets take a more realistic attitude to the danger some of these people represent. How many offenders do we read about that offend whilst on parole, or after being released?
      I don’t think we should hound people, but nor should we take such a hands off laissez faire attitude to community safety.

      • Tracey 7.1.1

        where do you think they should live? its a political solution…. not getting to the heart of prevention is my point.

  8. Gosman 8

    It is a bit rich calling for people to get their facts straight on this topic when proponents of a tougher line against ‘Rape culture’ misuse statistics all the time such as the often quoted 1 in 4 woman have been the victim of a sexual assault or only 1 % of rapes actually end in a conviction. I would love to see more facts in this debate but it is not a one way street.

    • Weepu's beard 8.1

      You want to use the “facts” once they’ve been through the National government’s spin cycle, don’t you? A much more sturdy crutch to rely upon.

  9. Once was Pete 9

    I have a general question on what constitutes sexual violence. Is it any male female, or female male assault, or is there some threshold that must be ‘crossed’ before assault is defined as sexual assault? What qualifiers do the police use before they code an assault sexual assault. Might be stupid questions, but it would be good to know exactly what we are talking about.

    • NZ Femme 9.1

      Hi Once Was Pete,

      The Crimes Amendment Act 2007 updated legislation for sexual offences, making it gender neutral.

      Sexual Violation is the high end (most serious) of sexual offending, and there are two categories under that rubric, both of which are considered of equal seriousness before the law:

      128 Sexual violation defined

      (1) Sexual violation is the act of a person who—

      (a) rapes another person; or

      (b) has unlawful sexual connection with another person.

      (a) Maps to heterosexual male on female rape. (PIV)
      (b) Maps to sexual violations between same gendered people & female on male

      Other sexual offences are gender neutral i.e can be carried out by any gender on any gender.

      http://www.legislation.govt.nz/act/public/1961/0043/latest/whole.html#DLM329048

      Evidential levels/guidelines for charging and prosecution are the same across the spectrum.

      • NZ Femme 9.1.1

        Sorry, should add that (b) also maps to male on female when the sexual violation doesn’t encompass PIV (e.g: sodomy, or using an implement)

    • Tracey 9.2

      it is outlined in the crimes act 1961

  10. Bill 10

    Okay. That’s fairly succinct and straight forward.

    Sooo… not having followed any of this up until now, my question is, how can a trained lawyer throw comments around that imply an arbitrary reversal in the burden of proof? Second. Why did the media run (if run they did) with such nonsense instead of calling him on it? Third. Why didn’t he clarify what he was saying if he was being misconstrued? And finally. What the fuck have those who have been posting/commenting on this supposed reversal been thinking for christ sake!? Not taking things at face value by any chance? (hint for future reference – any reversing of the burden of proof would be a tad more serious than, well….many, many things coming to mind right now.)

    Anyway. Thanks for the post NZ Femme. Love the sound of relevant facts smacking on the table. So much more gratifying than squelchy opinion. And yes, I’m looking forward to your next one.

  11. Richard Christie 11

    A word to all in this thread who use the term victim instead of complainant when referring to the trial process prior the verdict/judgement.
    All of you are already reversing the burden of proof by your use of language.

  12. Awesome post, NZ Femme. Unfortunately, the comments have gone exactly the way these topics always do, with a bunch of men freaking out about the notion having to establish their sexual partners’ willingness to proceed, with no consideration of the current reality.

    So we have complaints about how impossible it would be to prove what goes on between two people in private – when survivors of sexual assault are already expected to prove they didn’t consent. And we have concerns about what kind of “test” should be involved in determining whether consent was obtained – when under current practice, someone can be saying no, struggling, or literally unconscious and somehow juries will determine they must have consented to it based on what they were wearing or how many people they’d slept with previously.

    And we have terrifying scenarios presented about hundreds of innocent people being locked up because of the theoretical odds of false conviction in a bizarro world where every single sexual encounter is taken to court – when right now we’re still waiting on an investigation into a situation where police had clear documented allegations of rape backed up by a fucking Facebook page and did nothing about it.

    I guess I just wish that all the sudden experts on jurisprudence who have magically appeared across NZ cared half as much about the awful situation which survivors currently experience as they do about the hypothetical situation which rapists might possibly find themselves in at an undetermined point in the future.

    • Lanthanide 12.1

      “when under current practice, someone can be saying no, struggling, or literally unconscious and somehow juries will determine they must have consented to it based on what they were wearing or how many people they’d slept with previously.”

      Given how patently stupid that state of affairs is, I don’t think changing the law is the solution. Applying some fucking common sense is.

    • NZ Femme 12.2

      Yes, when the likes of someone like Dame Sylvia Cartwright, a former Judge and Governor General, states that if she had a daughter she would strongly advise her not to seek Justice via the current system if she were raped, there is a problem. Dame Sylvia was not alone in that assessment. Many from across the spectrum working in the Justice system, Prosecuters and Defence alike, have said the same thing.

      It does get a bit depressing when these discussions end up back in the same place again and again. I was hoping we’d moved forward a bit.

      • Slowly but surely! I mean, can you imagine someone like Tania Billingsley being able to do what she’s done even five years ago?

        • NZ Femme 12.2.1.1

          No, I can’t.

          A confession; I cried when her interview aired. I was in awe of her eloquence. And there was this teeny part of me that was sad for myself, that I hadn’t had her chutzpah when I was her age.

    • wtl 12.3

      Yes, thank you NZ Femme for your clear explanations on this proposed law changes. As far as I can see, you are one of the only ones to make sure you got to the bottom of the situation and have explained things in a clear manner, effectively countering the spin from the usual suspects. Even the usually reliable No Right Turn posted what I would considered a kneejerk response to this whole issue, although that was largely because of the poor performance of Andrew Little in explaining the situation.

  13. Once was Pete 13

    NZ Femme. Thanks for the response. I can’t respond in the right slot on the post (ipad wont allow it) but what was behind my question was the thought that this category of offence might be contaminated by a myriad lesser offences. I see that this is not the case.

    • NZ Femme 13.1

      You’re welcome. 🙂

      I’m so sorry to hear your wee girl was assaulted. I hope she, and yourself (and family) had adequate support.

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