Friday, October 23, 2009

Justice scale may tilt for sex 'victims'

It now appears that New Zealand is trying to follow what Harriet Harman in Great Britain tried: lowering standards to make convictions for rape/sexual assault easier.

Thanks to Fidelbogen at The Counter Feminist for the heads up.

Comments will be interspersed.

Justice scale may tilt in favor of sex victims.

Notice the title of the piece. It automatically assumes that actual sex victims are prejudiced, that anyone who reports a rape or sexual assault is telling the truth -- that they are 'victims,' and by extension, the accused are rapists.

The justice system could be tilted to make it easier to convict sex offenders if the Government adopts proposals in a controversial taskforce report.

The report from the two-year taskforce for action on sexual violence, issued yesterday, would reverse the usual rules of evidence for sex cases only - disclosing previous offences and complaints against an accused offender, directing juries that they may draw an "adverse inference" if an accused opts to stay silent, and directing them that "beyond reasonable doubt" does not mean "no doubt" that the accused is guilty.

The special standards of evidence means the eradication of due process standards. The cherished right not to be forced to testify against yourself : gone. The jury can hear even of prior "complaints" -- so if you were falsely accused in the past, the jury gets to hear about it now, and the jury obviously will think, "hmm, where there's smoke, there must be fire." And if the jury has a doubt about guilt, it's OK to send the hapless male away for a few decades.

Other proposals include full funding for rape crisis agencies and an entitlement to two years of counselling for all sex abuse victims - a stark contrast to new Accident Compensation Corporation rules restricting counselling to victims with diagnosed mental illnesses and for a maximum of 16 weeks at a time.

The taskforce was set up by the former Labour Government in 2007, after a Commission of Inquiry into allegations by Louise Nicholas of sexual misconduct by police.

The taskforce has followed an unusual process which has let the National Government avoid any commitment to most of the key proposals.

The 14-member taskforce comprised the heads of 10 government departments, including Justice Secretary Belinda Clark and Police Commissioner Howard Broad, plus four people from a non-government network of sexual violence services.

But most of the proposals have been endorsed only by the four non-government members.

So, the individuals from the "Rape/Sexual Violence" industry are the only ones to endorse this? At least that is a good thing.

Justice Minister Simon Power said the Government would respond to the report "in the coming months".

ACC has extended its funding of the Auckland Sexual Abuse Help Foundation's helpline until January 31, assuming that ministers will decide on the sector's future funding by then.

The corporation said in May that it would stop funding the helpline from July 31 as part of a "line-by-line" spending review.

It has now extended its $350,000 annual funding twice waiting for Government decisions.

The taskforce proposals for the justice system are based on research, published this month, showing only 13 per cent of all sexual violence cases reported to police result in convictions.

Did it ever occur to the taskforce, that the percentage is only at 13 because there are a large number of these cases that weren't actually valid?

The full taskforce has endorsed three changes already proposed in a Government discussion paper last year:

* Defining "consent" in sexual cases. At present the law only specifies cases where consent does not exist. New South Wales defines consent as "if the person freely and voluntarily agrees to the sexual intercourse".

Are we going to see another of the "enthusiastically, verbally consents"-type of arguments? Consent can be granted without ever saying a word.

* Requiring courts to look at all the circumstances, including any steps taken by an accused to find out if the complainant consented.

Steps taken? Where does it end? Must a male obtain a written statement, a video of consent, or a video taping the entire encounter to establish consent? Once again, we are seeing the attempt to shift the burden of proof on to the accused away from the state. How many innocent people are going to be in prison because of this?

* Prohibiting evidence on the sexual history between the complainant and the accused except with the judge's prior approval.

OK, this might be the most outrageous piece of the puzzle. If I have been having sex with a woman for 5 years and then one night, after an argument, she turns around and yells rape, the jury is only going to hear the part about her yelling "rape."

The four non-government taskforce members recommend going much further to disclose the accused's past sexual convictions and the complainant's past complaints against him.

I wasn't aware that this wasn't already a possibility.

They say juries should also be directed that no corroborating or forensic evidence is necessary to convict someone in a sex case, that they may draw "an adverse inference" if an accused opts not to give evidence, that there can be good reasons for a complainant not complaining straight after a sexual assault, and that in sex cases "the standard of beyond reasonable doubt does not mean that no doubt can exist in their minds."

And there it is. No corroborating evidence or forensic evidence. Simply the word of an individual will be necessary to convict someone. And this doesn't scare the hell out of every man in that country? This should terrify anyone with a modicum of intelligence, and compassion. How is this NOT ripe for abuse?

As well, this means now that you can doubt the defendant did it, and still convict him. I hope that New Zealand is a rich country. The number of wrongful conviction lawsuits, in the future, is going to skyrocket, if these measures are put in place.

They also want "an absolute prohibition" of personal cross-examination of a complainant by an accused, a requirement for the judge to seek the complainant's views on alternative ways of giving evidence, an "inalienable right" for the complainant to have a support person during a trial, private rooms for victims in courts and police stations and specialists to help complainants write victim impact statements for sentencing.

OK, I take back what I said before. THIS is the most outrageous of the proposals. It replaces the adversarial system with an inquisition system. The defendant can't defend himself the way any other accused is permitted. The judge and the ACCUSER decide how the male may present evidence! The cherished right to confront your accuser in court: gone. Specialists to help write impact statements? Is that anything like the case a while back, where the police helped the accuser rewrite her statement 15 times until they were happy with it?

Louise Nicholas, a Rape Prevention Education survivor advocate whose alleged rape by police officers in the 1980s led to a commission of inquiry in 2007, said the Government should ban jury trials completely in sex cases.

Just castrate the accused without trial, why don't you. MURDERERS get jury trials. MANSON got a jury trial. But a college boy who allegedly went too far? HE'S NOT WORTHY OF A JURY TRIAL. Forget what I said earlier: this is the most outrageous point raised. After all: "All men are rapists and that's all they are." Marilyn French.

And an alleged rape in the 1980's led to the commission in 2007? Seriously? Something that may or may not have occurred 20 years ago led to the forming of a commission to take away the rights of present day hapless males accused of sex crimes. How truly idiotic, how inane is that?

"Bless them, the jury does a fantastic job in other cases," she said.

"But when it comes to rape and sexual abuse cases unfortunately they don't have the understanding.

"Understanding" -- of what? That they have to evaluate ALL of the evidence, and determine if a crime has been committed? That type of "understanding"?

"From the age of 13 I found I had lost many battles, but today I feel a war has finally been won."

Auckland University associate law professor Julia Tolmie said the proposed changes would be revolutionary but were in line with proposals by retired Court of Appeal judge Justice Ted Thomas.

"Sexual assault cases are different from other trials because they are always credibility contests between the complainant and the accused.

"What Ted has argued is, let's let everything in that is relevant to credibility," she said.

Does that include prior false accusations? Does that include the accusers sexual history? Somehow, I doubt it.

But Victoria University associate professor Elisabeth McDonald said judges were already free to make most of the recommended directions to juries, and on balance she did not support the biggest further change in the report - the "adverse inference" where an accused chose to stay silent.

"I think there are other things that could be done that don't go to the heart of the criminal justice system, which is the presumption of innocence," she said.


"The thing that makes it difficult to convict in acquaintance rape situations relates to rape mythology, this idea that if something has happened they will complain straight away, or that if women go home with someone that means they want sex."

Garbage. The biggest difficulty is that in a he said/she said situation, with no other corroborating evidence, reasonable doubt is automatic and there shouldn't even be charges pressed. And I'm sorry, but if no explicit declaration is made that going home with someone isn't going to lead to sex, it is usually accepted and understood that that is the reason for going home with someone. That doesn't mean the man can force a woman to have sex against her will, but if she accedes to sex, it's consensual.


* Accused's past sex convictions and complainant's past complaints to be disclosed.
* Absolute ban on accused personally cross-examining complainant.
* Judge to seek complainant's views on alternative ways to give evidence.

* They may convict even if there is no corroboration or forensic evidence.
* They may draw adverse inference if accused opts to stay silent.
* There can be good reasons for complainant's delay.
* "Beyond reasonable doubt" does not mean no doubt.

Silence can be construed as guilt, you can have doubt and convict someone, and no evidence, other than the word of the accuser is needed. Men of New Zealand, there are now recommendations in place that put a bullseye target on your backs; they would snatch your freedom from you based on nothing but the word of a single person. Welcome to New World Order.