As part of She’s Right’s participation in 16 days of activism to end violence against women, each article will be dedicated to a New Zealand woman who has lost her life due to gender-based violence. This article is dedicated to Feona McKay-Patea, killed by a man on or around 3 October 2019, at the age of 23.
By Jessica Sutton.
Sometimes, I feel like I’m writing about nothing but bad news. Let’s change it up. Good things are also happening for women, progress is being made, and I think it’s important in the context of our #16days of activism, to also celebrate the positives.
New Zealand Parliament has a decent chance of doing a great thing, something that would make strides towards consigning to history the horrific way women are treated in New Zealand sexual violence trials. I’m talking about the Sexual Violence Legislation Bill which, if passed, will signal a new approach to sexual violence trials, focusing on preserving the dignity and safety of complainants. Through the female witnesses in the extremely high profile Grace Millane case, we have had a glimpse into the gruelling experience of sexual violence complainants. They are cast as liars, brutally cross-examined for hours on end, allowed next to no privacy or respect, cut off from support, and can suffer severe psychological harm. These women are being put on trial and blamed for their own victimisation, and if this Bill passes, this unacceptable situation will be on its way out.
What will the Bill change?
The Bill makes changes in three main areas: regulating the evidence given at trial, addressing aggressive cross-examination, and avoiding re-traumatisation of complainants.
The Bill makes restrictions on admissibility of evidence more robust, ensuring that questioning a complainant about sexual history and sexual predilections is by and large not permitted. This includes sexual experience with the defendant, sexual activity with others, and the complainant’s ‘sexual disposition’: whether the complainant had a ‘promiscuous’ reputation or not. This is also applied, with certain exceptions, to sexual cases in the civil jurisdiction.
The Bill therefore addresses a very pressing issue – the fact that Defence counsel can play on jurors’ misconceptions about consent to draw a link between the complainant’s past consent in similar situations, and consent to the incident at trial. This is a very important change, as it recognises that consent is a dynamic, not a static concept. Consent can be given and then withdrawn, it can be given on one occasion and not another, and is independent of past actions with the defendant, or past actions in similar contexts. Further, the supposed promiscuity of a complainant cannot be turned to by the Defence as a means to excuse or explain the sexual violence.
However, we should not overstate its usefulness. The Bill does not provide a total prohibition on admission of sexual history evidence, the judge could still allow this evidence to be admitted if satisfied its relevance is such that excluding it would be “contrary to the interests of justice”. Feminists and legal theorists alike, question when this kind of evidence could ever be relevant to the question of consent.
Even more disappointingly, Justice Minister Andrew Little has ruled out the Bill being broadened to prevent the sexual history of femicide victims being dragged through the courts. I maintain that the invasive recourse to Grace Millane’s sexual history during her murderer’s trial was disrespectful to her memory and ethically irresponsible. Using a murder victim’s sexual ‘reputation’ to blame them for their own murder is an abhorrent argument which is not worthy of being termed legal advocacy.
The Bill also allows the Judge to intervene when aggressive cross-examination is inappropriate and likely to retraumatise a complainant. Questioning in cross-examination is unacceptable when the Judge determines it is “improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand”.
This would clearly cover the type of questioning common in sexual violence trials which consists of repetitive accusations of deceit, humiliating questions about intimate matters, and unnecessarily complicated questions intended to trip up complainants. The complainant’s vulnerability is also relevant to the Judge’s discretion to rule questioning unacceptable.
The Judge also has a duty in the Bill to give directions to the jury on any rape myths arising or likely to arise during the trial, to make clear that such misconceptions are not a proper basis for their deliberations. Rape myths included in the legislation as non-exhaustive examples include: women inviting rape by dressing provocatively or consuming alcohol, and supposed ‘real rape’ involving strangers and resulting in physical injuries.
Judicial directions, although not capable of eradicating jury bias, are an excellent means to draw jurors’ attention to unacceptable lines of inquiry, and to encourage them to remain impartial. Judges rebutting these common false beliefs about sexual violence will also serve an educative function. Jury service in a sexual violence trial is a very confusing and exhausting ordeal for many jurors, and receiving guidance from an authority figure will be a welcome addition to the trial framework.
Provisions in the Bill which are intended to avoid revictimization and reinforcement of trauma allow the complainant more control in the process. Certain complainants will also be permitted to give their evidence in a variety of ways, including via a video recorded before the trial and played in court. If a complainant is required to give evidence in person, then the court can be cleared of the public when the victim impact statement is given. The importance of victim impact statements is reinforced throughout the Bill, ensuring that complainants are able to communicate the harm the offending has caused. This will likely have a cathartic effect and aid complainants to begin to heal, without being under the scrutiny of members of the public.
These changes begin to remedy the issue of witnesses and complainants suffering for hours in the witness box while subjected to humiliating cross-examination. This is an extremely valuable means to reduce the invasion of privacy and re-traumatisation of giving sexual evidence in public in front of a jury.
What provoked the change?
A variety of factors were relevant, including social developments such as the #MeToo movement revealing the horrifying extent of sexual assault in our society. The main impetus, however, was the Law Commission’s 2015 Report on Sexual Violence and 2019 Report on the Evidence Act. The Law Commission concluded that the current situation was unacceptable for survivors of sexual violence. The trial stage of the process is hugely damaging to female and male complainants who have already suffered the trauma of sexual violence, only to be retraumatised in Court.
Submitters to the Law Commission’s 2015 report made clear that those familiar with the system would only advise a sexual violence survivor to undergo trial in “the most extreme circumstances.” Prospective complainants are disincentivised from taking charges forward, knowing that sexual violence trials likely will not provide them with the justice that they seek. Statistics New Zealand figures support this sentiment, as under half of the sexual offending cases which came to trial in 2018 ended in conviction. Change was clearly necessary, and although the Bill doesn’t go as far as it needs to, it’s an excellent start.
Will it pass?
Early signs are good! The Bill passed its first reading in Parliament last week and is hopefully set to make good progress. Although clearly not an ultimate solution, the Bill would lay a strong foundation for continued improvements to New Zealand’s approach to sexual violence.
Currently the Bill is being analysed by the Justice
Committee and will head to its second reading following that process. We wish
it well and hope to see it come to fruition as an Act of Parliament that New Zealand
can be truly proud of.
 Comments of Justice Antony Ellis “The Rape Trial: Are the Scales of Justice Evenly Balanced?” in Juliet Broadmore, Carol Shand and Tania Warburton (eds) The Proceedings of Rape: Ten Years’ Progress? (Doctors for Sexual Abuse Care NZ, Wellington, 1996) at 83.