The Sexual Violence Legislation Bill apparently removes a defendant's right to silence, forcing them to describe their defence before trial. Photo / Greg Bowker, file
The Sexual Violence Legislation Bill apparently removes a defendant's right to silence, forcing them to describe their defence before trial. Photo / Greg Bowker, file
Opinion
COMMENT
The Green Party's prized Sexual Violence Bill is before Parliament. One gorilla in the room that the Greens seem never to address is that the bill will, as expert defence lawyers affirm, increase the imprisonment rate of innocent men.
That unjust and tragic effect will be achieved by damagingfair trial rights in two major ways: first, the bill will presumptively outlaw relevant evidence by which juries might well conclude that innocent defendants should be acquitted. Secondly, the bill will destroy the defendant's right to silence, forcing him to describe his defence before trial, thereby allowing the prosecution and its witnesses to then more convincingly "re-mould" their case later at trial.
I would mention here that I have seen injustice in some depth. My legal apprenticeship began as a young woman in the Middle East where I personally witnessed the hangings of my employer's clients, a fatal stoning, and the lashing of several people. As befitting systems with extreme sentences, "trial processes" there are likewise jarringly unjust, with few of the fair trial rights that the New Zealand system presently protects so necessarily.
After moving to this country, any relief that heartbreaking injustice was now behind me disappeared on encountering a case in which a woman had testified to being raped, leading to the imprisonment of her rapist. In fact, the allegation of rape, she later revealed - under the privilege of lawyer-client confidentiality - had been a complete lie.
Having ruined a man's life, a lawyer counselled the woman toward atonement, but was also duty-bound to issue a caveat; coming forward would likely mean her prosecution for perverting the course of justice. That price, the woman was unprepared to pay and so "her rapist" remained in jail.
Alas, even with a "First World" legal system, serious injustices can still occur and that example is but one of many. A reported instance concerned a woman being charged with perverting justice, which was in the locality "proven to be the third false complaint from that week", as the senior detective put it. "You do get far too many of them," said another officer of false complaints, but the police were often reluctant to charge these women because their lies often stemmed from "personal problems".
"Personal problems", lawyers would add, include wanting to open up a second line of attack in custody proceedings, to improve divorce settlements and to disguise discovered, but consensual, sexual liaisons.
So why this bill? Purported rationale for destroying fair trial rights for defendants ostensibly includes minimising distress for complainants in giving evidence (albeit presently with name suppression in closed court) and the remarkably Kafkaesque attack upon our juries that they deliver a "high number" of acquittals (obviously having found prosecutions unconvincing).
In truth, the bill is an ideologically-driven cause, intertwined with left-wing feminism and an underlying premise that all complainants are fundamentally truthful victims.
It follows that defendants are axiomatically guilty and that fair trial rights - which interfere with convictions - are unhelpful and expendable.
Accordingly, the Greens feel confidently justified in not trusting juries to render "correct" verdicts. Most jurors, it can be statistically assumed, are drawn from the pool of centre voters. They conscientiously apply their common sense and experience, instead of dogma. So jurors, say the Greens, should be prohibited from hearing the whole story.
In allowing this doctrinally-infused bill to progress, it seems that the Labour Party has forgotten that its constituents include low-income males, for whom the risk of imprisonment, for various reasons, is notoriously greater.
Noteworthy as well is that the bill contradicts other government policy with the establishment of the Criminal Cases Review Commission currently in train to investigate wrongful convictions, whereas the Green bill would multiply wrongful convictions.
It is a shame that Labour did not distance itself from this activism off to its far left as quickly as it did last week with the Green Party's wealth tax, since destruction of liberty must be at least as important as the confiscation of wealth.
Samira Taghavi. Photo / supplied
Still, there is hope. A coalition of the sensible could get an amended bill passed, excising the nonsense and saving a remnant of useful change (for instance, improving the way victim impact statements are presented).
Tracey Martin of New Zealand First is reported to be inquiring into the bill. Chris Penk of National has written amendments that would make the bill tolerable. And Labour's Justice Minister, Andrew Little, has been in the news for being commendably strong in defending fundamental trial rights, such as the right to silence.
Their parties could together bypass this Green extremism. We should pray that they do, especially those of us in families that include men - who might one day be falsely charged.
• Samira Taghavi is a barrister and practice manager with ActiveLegal.
• Supporters of the Sexual Violence Bill were invited to respond to this column. That response can be read here.
