Editorial: Law changes will aid justice in sex cases

Opinion

According to retired Court of Appeal Court judge Justice Ted Thomas, the present trial system is "brutalising and distressing" for complainants in sex cases. For that reason, it is unsurprising that many victims of rape are deterred from coming forward. Ways must be found to reverse that and to act on a Ministry of Women's Affairs study that concluded only 13 per cent of sexual violation cases reported to police ended in conviction. Therein lies the importance of the proposals of the Taskforce for Action on Sexual Violence. If some seem revolutionary because of the way they would significantly tilt the justice system to make it easier to convict sex offenders, they are no more than what is appropriate.

A core recommendation would allow an accused's past sex convictions and the complainant's past complaints to be disclosed. This would address the considerable public disquiet following the acquittals three years ago of former policemen Brad Shipton, Bob Schollum and Clint Rickards on sex charges in the Louise Nicholas case. After the trial, it was revealed that Shipton and Schollum were already in prison after being found guilty in 2005 of the pack rape of a young woman at Mt Maunganui in 1989 - information that could not be disclosed to the jury previously.

Other taskforce proposals include giving judges the ability to direct juries that they may draw an "adverse inference" if an accused opts to stay silent, and to also direct that "beyond reasonable doubt" does not mean "no doubt" the accused is guilty. The sum of these and other recommendations is to create the sort of courtroom environment that encourages women to report offences and to provide juries with all the information they want, and need, to know. Some steps have already been taken to improve the lot of complainants, including the use of screens for some witnesses and requiring the leave of the judge before cross-examinations can be made on their sexual history. Much more, however, needs to be done.

Critics suggest the recommendations are too radical because they go to the heart of the criminal justice system - the presumption of innocence. They maintain the difficulty of conviction relates more to the myths and prejudices that surround sex crimes; that it is, for example, somehow a woman's fault if she gets drunk and is raped. But this overlooks the fact that, as Justice Thomas points out, such cases generally come down to a contest of credibility between the complainant and the accused. Juries are in little position to make an accurate judgment if they are denied crucial information, such as similar convictions already entered against the accused.

The 2006 Evidence Act has gone some way towards addressing this. It has been interpreted by the Court of Appeal as allowing judges to use such evidence after weighing up the value of prior convictions against the potentially prejudicial effect to the defendant. But, given the present system in sex cases is so patently unfair that it makes complainants feel they, effectively, are on trial, it is reasonable to spell out the need for an accused's past sex convictions to be disclosed.

The Government is not committed to implementing the proposals. Indeed, most have been endorsed only by the four non-government members of the 14-member taskforce. The Justice Minister, Simon Power, has indicated he is in no rush and is unlikely to respond before the end of the year. That is not particularly helpful.

The taskforce was established in response to public concerns for rape victims in the wake of Louise Nicholas's ordeal. It has offered well-founded recommendations. They should be acted on without unnecessary delay.