WARNING: The following article contains graphic discussion of rape and sexual violence.
It’s the legal system’s worst-kept secret: When it comes to prosecuting rape and sexual offending, justice is eluding us. Research and statistics – a lot of them – prove this. For example, it is estimated that only 9% of sexual offences are brought to the attention of police in New Zealand. Of the sexual violations that are reported, only 13% will result in the conviction of an offender. A study by the Ministry of Women’s Affairs into female complainants in rape trials suggests that giving evidence of sexual violation in court is consistently a distressing experience for the victim, with 12 of the 14 women interviewed for the study separately reporting that it seemed that she was “on trial” rather than the accused.
Publicly raped
Leah (names have been changed to protect privacy) was raped four years ago by the flatmate of a friend who she was staying with. Despite her initial instinct to keep quiet, rumours that the same man had raped another girl prompted her to go to the police. I asked Leah what it was like to be a complainant in a rape trial:“It feels very public and impersonal,” Leah says. “Even in a closed courtroom you stand in front of the judge, the stenographer, a reporter, the officer in charge of the case, the Crown prosecutor and his or her assistant and the defence lawyer, his plus-one, the guy who runs things to the jury – which is another twelve strangers – and two prison guards flanking the last person in the world that you want to sit in front of to recount in excruciating detail exactly what he did to you.”
“‘What was he doing with his fingers? What did he do when his penis was in you? How did he move it?’ I don’t think it is possible to express how very close to unbearable this experience is … I have heard other victims say that the process is like being raped again, this time publicly. It took around ten minutes for a man to devastate my life as I knew it. It was two years before the court system was done with me.”
Part of the reason for the length of time it took to get Leah’s case through the system was that three separate trials took place, “The [first] trial ended with a hung jury. The jury barely took the minimum time to come to this verdict, and whispers later say that most people wanted to find him guilty but two jurors refused to convict.”
“Trial number two is six months of emotional torment later. There are things that I’m not allowed to say, but no limits to what the defence may suggest. By the beginning of the second day two jurors have dropped out, claiming to have some connection to the defendant. The judge rules that the trial will proceed, acknowledging the emotional strain I have been through and not wishing to put me through it again. Two days later, a guilty verdict is reached, and weeks later he is sentenced to 8 years in prison. A couple more months, and he is back on the streets, acquitted [by the Court of Appeal] due to the [missing] jurors …”
“By trial three, it had been two years since I had been raped. I will never forget what happened, but months of counselling and therapy angled at helping me to at least occasionally think of other things made me less emotional about the event. Which is good, from a managing-to-live-my-life-again perspective. To a jury it is not the amazing achievement it is to you, [to them] it is confusing. If this really happened, why is she not crying or something? She doesn’t look bothered. They don’t know that this is the third trial; that a different jury has already found him guilty. That I am upset, and exhausted, I just have practice now. The whole ordeal ends with a not guilty verdict, and I cry on the shoulder of a kind police officer while my parents contend with his swarm of supporters who ‘knew he was innocent all along’. Then head back to Dunedin to finish my exams.”
For Leah, the most harrowing aspect of her experience was recounting her rape in front of the man that raped her. This was worst during cross-examination in which defence lawyers regularly use tactics beyond simply asking what did or did not happen: “No, I am not sure if he ejaculated. Apparently this is something that is obvious. I didn’t know that at the time, as I had not had much sex, and only ever with condoms. I’m not sure what’s going on now, is she [the defence lawyer] still calling me a slut, or is she goading me about my lack of sexual experience? I feel humiliated … It no longer feels like she is trying to help her client, it feels like she is punishing me for making her come to work today. It is suggested that perhaps I just had a wee nightmare? … This woman is cunning.”
Georgia Knowles, national coordinator of Rape Crisis, confirmed that for many rape survivors this is the most traumatic part of the process. “Part of [cross-examination] is it feels like they’ve been put on trial, because they’ve got to defend their own actions, whereas defendants currently don’t have to say anything.” However, according to Knowles, there are other problems in the system, from when a woman reports a rape, through to a verdict being delivered.
“[Survivors] don’t get enough information about what goes on. And because [the trial is] being taken on behalf of the Crown, not on behalf of them necessarily, they can end up feeling sort of minimised, like it’s not really about them and they don’t get much autonomy with their evidence, because they don’t really know what’s going on. Straight through from the complaint stage people are like, ‘I have no idea what’s going on with my case and people just don’t get back to me.’”
Reform?
The Law Commission is discussing what can be done to create a more just approach for prosecuting rape and sexual violence cases in a 117-page issues paper entitled “Alternative Trial Processes”. The Commission is entirely independent of the government, and its role is to explore possible law reforms, consult the public on these issues, and then make recommendations based on its research and consultation. Government can then choose whether or not to implement these by changing the law in Parliament.The Law Commission is currently at the second of its three stages, having finished receiving public submissions on alternative trial processes on Friday April 27. These submissions were reflected in proposals in the issues paper, which put forward six extensive potential reforms of the law relating to the period before, during and after criminal trials. While in theory these changes could be made in relation to any criminal offence, the focus was on sexual offences and the special challenges they present to the legal system.
Of the many changes proposed, two have created particular controversy. The first is the proposal that juries should not be used in trials for sexual offences. Instead, a judge with two jurors would oversee the trial and deliberate on the result. These jurors would sit on a number of sexual assault cases for a fixed term and, like judges, would receive training on how to do so in advance. Furthermore, Crown and defence lawyers would have less control over how evidence is given. The judge would determine the order in which witnesses give evidence and would be able to ask questions. Most controversially, it’s proposed that the defendant would be required to give evidence first, unless the judge decided otherwise. The Law Commission argues that this does not undermine a defendants’ right to silence, because they could refuse to answer any or all questions posed.
Parallel to this is the proposal to create an entirely different procedure for some rape cases, designed to address a portion of the 91% of sexual offences that usually go unreported. This would allow the victim, if the accused agreed to participate, to opt for a restorative justice process. The details of this process would vary depending on the nature of the case, but the eventual aim would be to come to a set of agreed outcomes, usually with the requirement that the accused undergo treatment or education to address their sexual offending.
This option would be most likely used for sexual offending in a family context, when victims and offenders often have an ongoing relationship after the offending. As Associate Professor Elisabeth McDonald, who co-wrote the book Real Rape: Real Justice, and collaborated on the Law Commission’s research for its issues paper points out, many victims may “not want the offender to be imprisoned for a lengthy period of time, even though they would like some form of acknowledgment that the offending occurred.” Knowles notes that this restorative justice system may be a better fit for many Maori (who are twice as likely to be the victim of a sexual offence). “In terms of Maori culture, it makes a lot more sense to do things in groups, that’s important as a different avenue for justice for
some people.”
But is it justice?
Such proposals would present a radical change to the way criminal law functions. As with anything radical, not everyone is convinced this is a good thing. The major fear seems to lie in the ousting of the jury from rape trials, which leads in to the age-old debate on the role of juries versus judges in determining the fate of defendants. As constitutional lawyer Steven Franks reflects, the Law Commission “might be right [that juries reflect certain prejudices about rape] but your worry is that what they’re really saying is ‘we don’t like ordinary people’s attitudes to these defences and they don’t apply the kind of judgment that we would like.’”McDonald points out some defence lawyers may be overstating the adverse impact the proposed reforms will have on their clients. “Without pigeon-holing all defence lawyers, as there are a number who are very favourably disposed to some of these options. Quite often any proposals for change are reacted to negatively by this group, whether they are good ideas or not. However, McDonald says, “there is no reason to keep doing the same thing just because it has been done for a long time.” Certainly these reforms may seem extreme in the context of New Zealand, but many of the proposals are the norm in the Netherlands, Germany, and Denmark, hardly countries associated with the mass violation of human rights (at least not recently, anyway).
Knowles has other concerns about the proposals. “I think it’s quite good in theory, though lots of things are good in theory and it doesn’t always come through in practice … they haven’t explained yet how it’s going to implemented.” Training judges and jurors to put aside certain myths and misconceptions about rape, while also enabling them to objectively assess the evidence, is no easy task. According to Knowles, “what I worry about is who will provide the training and who will review the processes and figure out if they work or not.”
However, Knowles does believes that the reforms hold value to survivors of rape. “What we want to achieve … is acknowledging that people have suffered within a system and saying, ‘that’s unacceptable and we’re going to do something about it which makes it better for you.’ The value is in making that process easier for survivors, not necessarily in preventing rape or making conviction rates higher, but saying ‘your experience is important and it’s worth recognizing that.’”
