Rape trial overhaul now on ice without NZ First support before election

A new bill aimed at making rape trials less traumatic for complainants is unlikely to pass before the election. Photo / 123rf

A law change overhauling how rape trials are conducted in New Zealand has stalled, with progress this parliamentary term now all but dead in the water.

The Sexual Violence Legislation Bill, hailed as long overdue and groundbreaking by victims' advocates, was hoped to be passed into law earlier this year.

It aims to make the process less traumatic for complainants, but it has been heavily criticised by some legal circles - defence lawyers in particular - as compromising a defendant's right to a fair trial.

NZ First had previously asked for more time to look into its concerns about the bill, but has now decided it cannot support it in the limited time remaining in this Parliamentary term.

The bill has been championed by Justice Under-Secretary and Green MP Jan Logie, but NZ First Cabinet Minister Tracey Martin said she didn't want to blindly tick boxes.

"I understand if she's upset but we are not their 'yes' people," Martin told the Herald.

"We don't just stamp stuff through. We feel very rushed and we're not comfortable with the bill.

"This is really important and we're just not confident that we've got the balance right."

Critics of the bill oppose the provision that would entitle complainants to be cross-examined via pre-recorded video, which would protect them from the potentially intimidating experience of giving evidence in front of a jury and the accused.

But critics, including the Bar Association and the Auckland District Law Society, say it would defeat the purpose of the bill; if new evidence emerged, the complainant could have to give evidence a second time, making it doubly traumatic.

Cabinet Minister and NZ First MP Tracey Martin says NZ First needs more time before it can support a bill overhauling the way rape trials are conducted. Photo / Mark Mitchell

Martin said that Logie's office had provided her with inaccurate information about how common pre-recorded cross-examination was overseas.

She suggested it would be better to trial what the bill proposed, as had been done in the UK, starting with testimony and cross-examination from children or impaired adults.

Opponents are also against the higher threshold before evidence can be used about the complainant's sexual history with the accused.

In submissions on the bill, defence lawyers argued that this history was often central to the defence's case, but under the bill it would be assumed to be irrelevant.

The defence could apply for a judge to review the intended evidence, but in trying to prove its importance, the defence would have to "show its hand" by telling the judge and the prosecution the nature and scope of its questions.

Martin said NZ First had fewer issues with this aspect because a similar provision in the UK had shown that defence lawyers had challenged the admissibility of such evidence with a 90 per cent success rate.

But she said the caucus needed more time to dig further into the details, and if the bill's second reading came up in the next two weeks - the last sitting block before the election - NZ First wouldn't support it.

"We feel we are now being rushed. We're not blocking it. We just need more time to make sure the changes will work practically and not have adverse impacts."

NZ First had not been on the select committee, nor had the committee - split with an equal number of Labour and National MPs - come to any agreed position on the bill.

Justice Minister Andrew Little conceded the bill's chances of passing before the election were "low".

"We are continuing to work with our coalition and confidence and supply partners on the legislation."

Asked about trialling pre-recorded cross-examination, he said: "No specific suggestions for change have been made to me by NZ First."