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:
- 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.
- Adding further guidance on the reasonable belief test.
- An extension of the rape shield laws, to disallow any previous sexual history between complainant and defendant to be raised, without prior Court Approval.
- 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).