The UK has had the proposed threshold for questioning a complainant on their previous history in place since 1999. Photo / NZ Herald, file
The UK has had the proposed threshold for questioning a complainant on their previous history in place since 1999. Photo / NZ Herald, file
Opinion
COMMENT
The least that victims and survivors of sexual violence deserve is not to be traumatised by our legal system, on top of everything they've been through. Unfortunately, though, that's the experience of far too many who seek justice through our courts.
In Government, I've been working to change this.But as I read claims about the "Green Party" legislation that destroys the right to a fair trial and treats all men accused of sexual violence as guilty, I wonder how far people will go to defend the status quo.
A status quo where 24 per cent of people in this country have experienced sexual violence – and only 6 per cent report it. A status quo where a young woman who had been raped is put on the stand, for hours, to defend flirting with a man earlier that evening – regardless of the fact she had gone to bed alone only to wake up to find that man raping her. A status quo where parents whose children have been sexually abused say, despite a guilty finding, that if they'd known what the court process would do to their family, they wouldn't have reported.
I want to change that status quo. And I want to correct the record.
Although I would be more than proud to claim this legislation for the Green Party, its origins go back many years, under both National and Labour governments. Its provisions come from reports, in 2015 and 2019, by the Law Commission – which investigated, and found, fair trials would be maintained.
This is one of the most balanced, well-evidenced pieces of legislation I've ever seen before Parliament. Pre-recording of evidence, including cross-examination, has been in place for many years overseas. It has often been introduced first for children and other vulnerable witnesses and then expanded, with no issue. New Zealand has a lot of experience to draw on to implement this well.
We recognise defence lawyers need time to build their case before cross-examination, and they will get it, because judges will have to be confident that giving evidence in alternative ways won't impact the right to a fair trial.
The defence will be able to ask for extensions. They will be able – though overseas evidence has shown this is rarely required – to recall witnesses. And pre-recording evidence assists them, too: by allowing inappropriate or leading questions by the prosecution to be edited out before the jury hears them.
They will still be able to introduce evidence of a complainant's previous sexual history with the defendant. They will just have to meet the same threshold we already have for sexual history with other people.
We outlawed rape within marriage in 1985; we know that a prior relationship with someone is not, on its own, relevant to whether there's consent in a specific instance. All we're saying is that a judge should make sure that relationship is relevant. If it isn't, I have to wonder why it's so important to be able to grill a woman for hours about whether her "yes" the night before meant her "no" the morning after shouldn't count. Or asked whether or not she kissed the defendant eight months prior, and whether that showed she consented.
The UK has had the proposed threshold in place since 1999. A recent review found applications were made in 25 per cent of cases and all or some of the evidence was admitted in 78 per cent of those cases.
Defendants will still have the right to silence. That should go without saying, but apparently it doesn't. The defence already has to apply to admit some sexual history evidence. They already have to disclose some aspects of their case if they want to challenge the Crown's evidence ahead of trial.
Jan Logie. Photo / Mark Mitchell, file
The defendant's right to silence is not the right to surprise a complainant with any distressing, personal or salacious information you like once they're on the stand.
This law ensures sexual violence trials are fairer. That complainants can testify and be cross-examined in a way that is less traumatic. That defendants, complainants and witnesses have communications assistance to ensure they understand the court proceedings and can answer questions fairly, and judges intervene to stop inappropriate questioning by either side – because we don't get justice by confusing, or belittling, or wearing down defendants on the stand.
This law says the evidence presented should be relevant to proving the facts of the case. That juries should make their decisions based on that evidence, not myths and misconceptions about sex and relationships.
