By Jessica Sutton.
This series ‘Women and the Law’ will look into the way women are treated in the criminal justice system, beginning with analysing weekly the high-profile trial of the alleged murderer of Grace Millane.
Content Warning: This article contains graphic details which readers may find disturbing.
It has been almost a year since the body of Grace Millane was discovered in the Waitakere ranges, and this week the man charged with her murder (who has name suppression) began to be tried in the High Court in Auckland. I’m not alone among women in my age group, in that Grace, and what happened to her, hasn’t left my mind since December 2018. The first week of the trial has provoked enormous media attention and has also raised compelling questions around the way femicides (murders of women and girls) are treated in the media and the courtroom.
The Trial So Far
The prosecution alleges that Ms Millane was intentionally strangled to death by the accused in his CityLife Hotel apartment on the night of the 1st December 2018 after a Tinder date. Prosecution counsel outlined the conduct of the accused after Ms Millane’s death, including:
(1) Making searches on his phone including “Waitakere ranges” (where Ms Millane’s body was ultimately found) and “hottest fire”;
(2) Taking intimate photographs of Ms Millane’s body;
(3) Surfing pornographic websites;
(4) Purchasing a suitcase in which to transport and conceal Ms Millane’s body;
(5) Going on another Tinder date while Ms Millane’s body remained in his apartment;
(6) Driving Ms Millane’s body to Scenic Drive and burying the suitcase in a shallow grave, where it was later discovered by police.
The defence accepts most of the above as not in dispute – the only thing the accused challenges is his state of mind when Ms Millane died. Defence counsel argues that the accused did not have murderous intent, but rather Ms Millane died due to consensual ‘choking’ during sexual intercourse. The accused argues he passed out in the shower after intercourse, and awoke to find Ms Millane dead on the floor.
Institute of Environmental Science and Research (ESR) scientist Dianne Crenfeldt gave forensic evidence. Luminol testing (used to detect blood traces at crime scenes) allowed stains of possible blood on the apartment’s carpet and fridge to be viewable. There was also evidence of household cleaning products being used to clean up the stains, which the accused admitted to Police. DNA analysis has shown that the DNA found is extremely likely to be that of Ms Millane. However, ESR is unable to date the blood stains or the clean-up.
Extensive CCTV footage was viewed by the jury, depicting Ms Millane leaving Base Backpackers, meeting the accused outside the SkyTower for their date, and then moving from bar to bar before entering the CityLife Hotel and going up in the elevator to the accused’s apartment. This is the last moment Grace Millane was seen alive.
Analysis of Week One
With only one week of evidence down, and limited ability to gain insight into the relative styles of counsel from outside the courtroom, it is difficult to predict where the respective lines of arguments may go. However, the following concerns are typically rife in both sexual violence and homicide trials involving female victims, and are already hinted at in the approach in this trial.
The Blame Game
The media is emphasising that Grace chose to meet the accused via the dating app Tinder, and that both Grace and the accused drank heavily throughout their date. Some have gone so far as to blame ‘hook-up culture’, and young women engaging in casual sex as the reason for Grace’s death. I have heard this kind of narrative from both women and men in my life when discussing the case:
“Girls should know better than to go on a date with someone they don’t know!”
“Why would she go to his apartment?”
And most frustrating:
“Why was she travelling alone in the first place?”.
This perspective divorces responsibility from the men who perpetrate violence, and casts it onto female victims, restricting their freedom of choice and disrespecting their legacy. Defence counsel was quick to assure the jury that Grace would not be blamed for what happened to her. However, counsel still repeatedly and markedly raised the drunkenness of both parties throughout the defence’s opening statement. This is a typical mechanism to shift the blame for violence to women, often seen in sexual violence cases in New Zealand and elsewhere. This is based on the myth that by placing yourself into a state of intoxication where you cannot defend yourself, you are ‘asking’ for sexual assault or violence. The flipside of this, is that young women are taught that if you abide by some obscure set of ‘rules’, then nothing bad will happen to you. That you, and only you, can keep yourself safe. This removes all accountability from male perpetrators of violence. The defence therefore may play on society’s penchant for blaming women for their own victimisation, by creating a narrative around Grace’s ‘foolish’ choices.
Women and Juries
New Zealand’s jury system needs serious work, particularly in trials centring around female victims. Academics are discussing multiple options to remedy this, for example integrating experts into juries to address sexist views preventing an impartial verdict. Some of these options will be discussed in later She’s Right articles. These changes are needed because juries are a microcosm of New Zealand society, and our society perpetuates damaging beliefs around female sexuality and freedom of choice.
In a trial like this, jurors’ personal values around the behaviour of young women are brought to the forefront. This tends to result in the victim being on trial, just as much if not more so than the accused. Older jurors might be shocked at Grace meeting up with a man she talked to online. Male jurors close in age to the defendant might try to view his actions in a more positive light due to personally identifying with him. And any jurors, whether male or female, young or old, might hold misogynist beliefs around violence against women, and feel that an intoxicated young woman, travelling alone, who went home with a stranger, was reckless and to blame for the accused’s actions. These kinds of misconceptions can lead to a verdict skewed in favour of the defendant, even if the evidence does not support such a decision.
Both the prosecution and the defence will be creating a narrative of events to attempt to persuade the jury in their favour. Often, in this scenario, female victims are painted in entirely different ways to suit the respective narratives. The prosecution in cases such as this might fall into the trap of adhering to stereotypes of society’s perfect woman – presenting the victim as demure, accommodating, and pure. The defence in such cases will seek to find evidence to the contrary – that the victim was wild, reckless, and promiscuous. The truth, of course, is always something in between. I hope that this kind of binary will not surface throughout the coming trial weeks. Grace was a human being. She should not be held to society’s unattainable standards for female perfection in order to be granted a just and fair verdict. And there is nothing the defence can point to in her sexual history that will make her any less deserving of the life that was taken from her.
This early in the piece, it is impossible to make a prediction as to outcome. However, we can hope that some of the concerns I have outlined above will be addressed by responsible advocacy from both the prosecution and defence, and keen engagement from Justice Simon Moore to ensure the integrity of the trial.
She’s Right will continue to track the narrative of the trial as it develops to identify whether the above points of discussion surface and how they are perpetuated throughout the coming weeks in the journey towards a final verdict.
 Sokratis Dinos and others “A Systematic Review of Juries’ Assessment of Rape Victims: Do Rape Myths Impact on Juror Decision-Making?” (2015) 43 IJLCJ 36 at 45–46. In eight out of nine studies sexist beliefs around women’s behaviour were instrumental in the jury verdict.
This is an opinion piece. She’s Right is not a journalistic news publication. She’s Right does not certify the accuracy of any of the statements above, and any statements are made as the opinions of the author only.