Improvements to Sexual Violence Legislation in New Zealand - Home

Improvements to sexual violence legislation

36. Part One and Two of this paper provide an overview of three legislative issues identified by stakeholders.

37. For each issue, the current New Zealand law is set out followed by examples from Australia, Canada and the United Kingdom. The issues are discussed and disadvantages and advantages are considered. Options are provided and a preliminary proposal is presented as a possible preferred option for consideration and comment. Finally, questions are raised in order to get your feedback on each issue.

38. Your feedback on these matters is sought before policy options are further developed and put to the Government to consider. While we are particularly interested in your response to these preliminary proposals, please provide any other feedback you have in relation to each topic.

Part One: Consent

Issue one: The legal definition of consent

Current New Zealand law

39. Sexual offences are defined in the Crimes Act 1961. The crime of rape or unlawful sexual connection requires that the accused did not have the person's consent, and did not believe on reasonable grounds that the person was consenting.^[13]

40. The Crown must therefore prove three elements beyond a reasonable doubt for a successful conviction:

a) that sexual connection took place; and b) that the complainant did not consent to the sexual connection in question; and c) that the accused did not believe on reasonable grounds that the complainant consented to the sexual connection.

41. A positive definition of consent is not included in legislation; that is, the law does not set out what consent is. Rather, the Crimes Act states that a person does not consent just because they do not protest or offer physical resistance. A non-exhaustive list of circumstances that do not amount to consent (sometimes referred to as a negative definition of consent) is provided in section 128A. The list includes if a person:

• is subject to force or fear of force;
• is affected by an intellectual, mental or physical condition or impairment such that they cannot consent or refuse to consent;
• allows sexual activity because they are mistaken about the identity of who the other person is or as to the nature and quality of the act; and
• is asleep or unconscious, and if the activity occurs while they are so affected by alcohol or some other drug that they cannot consent or refuse to consent to the activity.

42. The existence or otherwise of consent is a factual matter and therefore one that a jury must decide on. In a sexual violence case the trial judge, when summing up, will direct the jury on what constitutes consent under the law. Judges direct juries that consent must be freely given and requires full understanding of the activity in question.

43. Judges have directed juries that consent must be "genuine" and "freely and voluntarily given" ^[14], or that they are to consider whether there had been "true, real or genuine consent". ^[15] In another case it was held that consent must be "full, voluntary, free and informed consent".^[6] The Court of Appeal has also said that "what will always be essential for there to be valid consent is that a complainant has understood her situation and was capable of making up her mind when she agreed to sexual acts".^[17]

44. In 1985 New Zealand was one of the first countries to take the approach of providing guidance in legislation on circumstances where consent is deemed not to exist.

Other countries

45. One of the aims of the sexual assault law reform that has taken place in Canada, the United Kingdom and Australia (in more recent years) has been to displace preconceptions about sexual violence and consenting behaviour and to provide a legislative statement of appropriate standards of sexual interaction.

46. A key change to law in these countries has been the introduction of a statutory definition of consent. Providing both a definition of what does constitute consent and a list of circumstances where consent does not exist is the approach that has been taken in the United Kingdom, Canada, and in all Australian states.

47. Figure 1 below sets out some examples of definitions of consent that have been introduced into legislation in comparable jurisdictions.

48. Scotland is currently in the process of including a positive definition of consent in statute following the Scottish Law Commission recommendation in December 2007 that the law should include a positive definition of consent. The Sexual Offences (Scotland) Bill was introduced to the Scottish parliament on 17 June 2008 and defines consent as "free agreement".

Discussion

49. A range of views exist on the impact of adding a positive definition of consent to the law. Depending on one's viewpoint, these create either advantages or disadvantages to changing the law.

Clarity or confusion?

50. Those who support the idea of adding a positive definition of consent think that the law should provide more guidance to juries and that further legal definition will add clarity and make the task of the jury easier.

51. However, overseas experience is that even in jurisdictions where a positive legislative definition of consent is provided, juries may still be confused. There may be difficulty in deciding whether consent was present, particularly in cases where consent was given reluctantly or after persuasion, or whilst judgement was impaired by the influence of drugs and alcohol. It will always be a matter of judgement, based on the particular circumstances of the case whether an apparently consenting complainant was freely consenting. While legal developments are important, the difference between legal definitions and how juries interpret and make decisions about consent can be significant.

52. Others question what a positive definition would add, given that juries are already instructed by trial judges to consider whether consent was genuine or freely and voluntarily given.

Better outcomes?

53. Changing the law in this way could lead to increases in reporting and conviction rates. However, the link between positive consent definitions and increased reporting and conviction in those countries that have changed the law is not clear. Some people believe that without strong evidence to show that the inclusion of a positive definition of consent has resulted in significant increases in reporting and conviction rates in other jurisdictions, any such amendment in New Zealand should be avoided.

54. One barrier to reporting sexual violence is the perception that the complainant and their behaviour is put on trial, rather than that of the accused. There are differing views on how much the addition of a positive definition of consent would improve the trial process for complainants. Also, we do not know whether technical legal amendments will affect the willingness of complainants to report offences or prosecutors to prosecute them, when many other factors also play a part.

55. Making legislative change primarily for symbolic reasons can not only be unnecessary but may also be counterproductive. For example, change may create the impression that juries should no longer find it difficult to decide whether a complainant consented to sexual activity, when in practice it may become no easier. The nature of these cases and the difficulty of deciding between conflicting evidence will not change. Neither will legislative change alone alter the perceptions juries hold about sex and sexual offending. Further, any change to the law could lead to an increase in appeals while the changes are tested by lawyers.

Can the law change attitudes?

56. Law change can be important in setting standards and impacting on attitudes about what constitutes acceptable behaviour. It can be argued that the current statute, by being framed in the negative, supports the assumption and reinforces the attitude that consent always exists unless particular circumstances are present. This approach potentially undermines beliefs about the right to choose on each occasion.

57. One advantage claimed of the law setting out what is required for consent, rather than what does not amount to consent, is that it reinforces the fact that consent is not a pre-existing state, to be refuted by withholding consent. However, this view does not appear to recognise that as the law stands currently, consent must be actively and positively provided on each occasion. Changing the law may help to remove mistaken impressions about current legal requirements.

58. Research has shown that stereotypes and beliefs about sexual roles, gender norms and consenting behaviour impact on decision making. Police officers, judges and jurors actively interpret what they see and hear, based on their own knowledge, experiences, attitudes, biases and expectations. It is possible that the law can play a role in challenging outmoded stereotypes and beliefs, including the mistaken assumption that consent exists unless other factors are present to suggest it does not. However we do not know whether changing the law, for example by adding a definition of what consent is, will change stereotypes and beliefs.

59. There are dangers in expecting too much from changing the law, when attitudes and behaviours need to be addressed more generally. On the other hand, processes such as this discussion document and the select committee process can helpfully raise awareness and increase conversations about community standards.

Detailed guidance?

60. Not having a positive statutory definition when making decisions about consent may encourage preconceptions and biases to prevail. A lack of definition enables the notion of consent to be more widely interpreted and therefore allows beliefs about sex and sexual violence to impact on the assessment of consent and the circumstances that surround it.^[18] This suggests that the answer is to provide as much guidance in the law as possible. Having said that, the law must be framed widely enough to encompass a wide range of circumstances.

61. Expanding the law of consent by providing more detail about what constitutes consent can also be criticised for creating the impression that there is an easy threshold of either consent or no consent. However, we know that consent is not a clear and easily determined concept but rather one that exists within a continuum of community standards that resists tidy definitions.

62. A definition may not add anything new to the current law. It may also have unintended consequences in practice, at least in the short term, and therefore an increase in appeals.

Staying current

63. New Zealand could be seen as lagging behind other countries and that because so many comparable countries have moved to adopt positive definitions of consent, New Zealand should surely follow.

Testing the new law

64. As with any law change, there may be an increased risk of appeals while a new definition is tested. In sexual offences cases, a number of these issues will be tested in pre-trial applications. Where pre-trial decisions are appealed, delay can greatly add to the complainant's stress.

65. However, this may be a short term issue, and could be weighed against long term benefits for complainants in sexual offences cases.

Options

1. No change: the law would continue to provide a list of circumstances that do not amount to consent.

2. Amend the law to include a positive definition of consent to sexual activity to sit alongside the list of circumstances where consent is deemed as not being present.

Preliminary proposal: (Option 2)
The Crimes Act 1961 be amended to include a positive definition of consent to sexual activity to sit alongside the list of circumstances where consent is deemed as not being present. It is proposed that the definition of consent contain the concepts of freedom, choice and capacity to make that choice.

Questions

1. Should the Crimes Act 1961 be amended to include a definition of what consent is (a positive definition of consent) to sit alongside the legal definitions of situations where consent is not considered to be present?

2. If you think that the law should contain a positive definition of consent, should this definition contain the concepts of freedom, choice, and the capacity to make the choice to consent to sexual activity?

3. Which, if any, of the examples from overseas law, do you prefer as the basis for a New Zealand definition of consent?

Issue Two: Adding more guidance to the reasonable belief test

Current New Zealand law

66. Whenever consent is an issue in a trial, the jury must be instructed to consider whether the prosecution has proved that the accused did not believe on reasonable grounds that the complainant was consenting.

67. In New Zealand there are two ways the Crown can satisfy the jury that the accused did not have any reasonable belief in consent. One is to prove that the accused did not in fact hold a belief that the complainant was consenting (a subjective test). The other is to prove that no reasonable person 'placed in the accused's position' would have thought the complainant was consenting (an objective test). Both arguments must be proved beyond a reasonable doubt. ^[19]

68. The accused's belief that the complainant was consenting to sexual activity must be examined from the viewpoint of the ordinary person (that is, the question to answer is "would a reasonable person in the shoes of the accused have believed the complainant was consenting in those circumstances?"). The jury is required to assess whether reasonable grounds existed for the accused to think that the complainant consented.

69. This can be compared to Canada, where the prosecution must prove that the accused did not honestly believe the complainant was consenting. In Canada, it is not relevant whether that belief was reasonable or not, or whether any one else would hold it, as long as it was honestly held by the accused. Other circumstances are also taken into account, including the steps taken by the accused to establish consent; these are discussed below.

70. There is no guidance in the Crimes Act on what matters the court should consider when determining whether or not a reasonable belief was formed. The trial judge will instruct the jury according to the particular facts of the case.

Other countries

71. New Zealand's legislation relating to the defence of belief in consent was amended before other jurisdictions in 1985. In New Zealand, as in other jurisdictions, the burden of proof lies with the prosecution when a defence of belief in consent is raised. The prosecution must disprove that the accused believed the complainant consented to the sexual activity in question. It is not for the defence to show that the accused had such a belief.

72. In New Zealand and the United Kingdom the prosecution needs to prove that there was no reasonable belief (an objective test) whereas in a number of other jurisdictions, the prosecution needs to prove that there was no honest belief (a subjective test). However, over recent years several jurisdictions including Canada and Australia have moved towards a requirement that the court give regard to the steps taken by the accused to determine whether the complainant was consenting and these changes have introduced an element of reasonableness in various ways.

Canada

73. Under Canadian legislation there is a defence available to a charge of sexual violation if the accused had an 'honest but mistaken belief' that the complainant was consenting to the sexual activity. This subjective viewpoint provides a lower threshold than in New Zealand currently. In Canada, defences are only available where the judge is satisfied that there is sufficient evidence to support them.

74. Section 153 of the Criminal Code of Canada sets out situations where a defence of mistaken belief cannot be used:

"When belief in consent not a defence

(5) It is not a defence to a charge under this section that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge if

(a) the accused's belief arose from the accused's

(i) self-induced intoxication, or
(ii) recklessness or willful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Accused's belief as to consent

(6) If an accused alleges that he or she believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief."

75. In practice this has codified an existing requirement (that also exists in New Zealand) that the defendant must point to some evidence that puts a defence of mistaken belief in issue. Once the trial judge decides there is sufficient evidence for the defence to go to the jury, the prosecution must prove beyond reasonable doubt that the accused did not have this belief.

76. Canadian courts have interpreted the legislation as not requiring that all reasonable steps to ascertain consent must have been taken for a potentially successful defence of honest belief; instead just taking some steps is sufficient.

Australia

77. The Crimes Amendment (Rape) Act 2007 (Victoria, Australia) came into force on 1 January 2008. Section 37AA states:

"Jury directions on the accused's awareness

For the purposes of section 37, if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act, the judge must direct the jury that in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider-

(a) any evidence of that belief; and

(b) whether that belief was reasonable in all the relevant circumstances having regard to-

(i) in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether the accused was aware that that circumstance existed in relation to the complainant; and

(ii) whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and

(iii) any other relevant matters."

78. The prosecution still has to prove beyond reasonable doubt that the accused intended to commit a sexual offence against the complainant without their consent and, if the defence of honest but mistaken belief is put to the jury, the prosecution must also prove beyond reasonable doubt that the accused did not have an honest belief in consent. However, the defence now has the burden of producing some evidence for the existence of an honest but mistaken belief in consent. Note also, that the reasonableness of the belief in all the relevant circumstances must also be considered by the jury.

United Kingdom

79. Unlike Canada and Australia, the United Kingdom adopts the same 'reasonable' belief threshold as New Zealand. However, the United Kingdom's legislation also explicitly provides that when determining the 'reasonableness' of the belief the court must take into account all the circumstances including any steps the accused took to ascertain whether the complainant consented. The Sexual Offences Act 2003 states:

"Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents".

Discussion

The nature of sexual offences trials

80. The task that the prosecution faces in disproving reasonable belief in consent is a difficult one, when it comes down to the word of one person against another. This is one of the reasons why it is argued that sexual violence cases are one of the hardest offences to prosecute.
81. These challenges have significant implications for reporting, prosecution and conviction rates for sexual offences due to:
    • the nature of the criminal justice system process being perceived as unfairly arduous for complainants in sexual violence cases;
    • a significant portion of sexual violence cases not being taken further than the investigative stage due to Police or prosecution perceptions that the likelihood of a successful conviction is low; [20] and
    • the attention of the jury tending to be focussed on the actions of the complainant rather than looking at actions taken by accused to ascertain consent.
82. These factors are part of the context in which there have been calls to provide more guidance in the statute about the defence of reasonable belief. Such a law change might improve prosecution processes and the criminal justice system experiences of complainants, as well as improving common preconceptions about them, but there is no actual evidence that it will do so. While the law can sometimes play a part in changing attitudes, beliefs and values, it is generally a fairly blunt instrument for doing so without other supporting educative and social measures.

Keeping up with changes overseas

83. Some people argue that because of the recent changes that other jurisdictions have undertaken, New Zealand is no longer leading the world in the reasonable belief test. Perhaps New Zealand should follow changes made overseas, which reflect a more modern view of sexual relationships. There is support for the statute providing that the court must take into consideration the steps that the accused took to ascertain that the complainant freely agreed to take part in the sexual activity in question.
84. However, juries must already give regard to all the relevant circumstances in reaching a decision about whether the belief was based on reasonable grounds. The judge can state these factors in summing up the case. Therefore, amending the legislation may not achieve any real benefit.
85. Also, because only New Zealand and the United Kingdom have the reasonableness requirement, the changes made in Canada and Australia can be seen as still not going as far as the New Zealand legislation currently does. This is because the honest belief test in Canada and Australia is subjective. The test relies on the accused having the belief whether it was reasonable or not and whether or not anyone else would have held that belief. In contrast, New Zealand and the United Kingdom require the belief to be considered objectively, which is a higher standard.
86. One way to alter the New Zealand requirements would be to change the law to require that the judge must give a mandatory direction to the jury to consider the steps an accused took in establishing consent. The United Kingdom statute contains such a requirement. Adding a mandatory direction in New Zealand would strengthen the impact of the provision and increase the consistency of judicial discretion. A number of submissions on the Crimes Amendment Bill (No 2) 2004 supported this law change. [21]
87. The counter argument is that this would be out of step with the direction that New Zealand has taken in recent years in removing mandatory directions. These often end up as standard or 'formulaic' directions that can be out of step with the case being considered and can sometimes work to the detriment of both complainants and defendants.

Putting the focus on the behaviour of the accused

88. There is a view that it is vitally important to bring better balance to the focus of the court between the complainant and accused. One way to do this is to require consideration of whether and/or how the accused took steps to ascertain a belief that the complainant was consenting, putting the focus on the accused.
89. Such arguments stem from complainants reporting that exploring the evidence relating to the defence of reasonable belief results in intense scrutiny of their behaviour, rather than that of the accused. As the defence has a right to silence and there are often no other witnesses or little supporting evidence in cases involving the issue of consent, jurors have to look to other cues to help them make a decision. Examining what the complainant may have done, or not done, to give the accused a belief in consent can often be a focus for the court. [22] At an earlier stage, the prosecution is also likely to decide which cases to prosecute based on the perceived strength of the case and of the complainant as a witness. [23] The likelihood of a defence of reasonable belief being raised will be one factor in this decision and at the moment the emphasis is largely on the complainant.
90. Some believe that little will change, because most accused will still exercise their right to silence, leaving the jury with little or no information to consider about the accused. Unless the law required people to take reasonable steps to confirm consent and they were held liable for a failure to do so (a requirement that no jurisdiction has yet introduced) then the change would have a minimal impact in practice.
91. A focus on the accused may give rise to other issues and there is a risk that the jury may focus on irrelevant aspects of the accused's behaviour.

Is a law change the best way?

92. We do not know if a law change would affect how people behave. Changing the law would send an important message about community standards and about what the law expects. In particular, there would be a reminder that consent has to be obtained on each separate occasion. Juries would be required to consider what the accused did to discover whether the complainant consented. However, an argument could also be made that public education may be a better way to get across the message that steps should be taken to ascertain consent.

Going further — reversing the burden of proof

93. Some people argue that as sexual violence is a unique crime that has a huge impact on victims, the burden of proof should be reversed so that defence counsel is required to prove the accused had a reasonable belief that the complainant consented to the sexual activity. [23] As well as its impact on victims, sexual violence carries assumptions about appropriate sexual behaviour as well as about gender norms and values. There are not usually any witnesses to sexual violence which places even greater emphasis on the conflicting evidence of the prosecution and defence.
94. This has not been proposed as an option because a review of the burden of proof would raise major Bill of Rights concerns, such as the right to be presumed innocent until proven guilty.
95. In addition, given that the minimum sentence for sexual violation is eight years imprisonment, sentence levels would also require consideration if the burden of proof is reversed.

Options

1. No change: retain a defence that the accused believed on reasonable grounds that the complainant was consenting.
2. Amend the law to require that, when determining whether the accused had reasonable grounds to believe the complainant consented to sexual activity, the court must have regard to all the circumstances relevant to the case including any steps the accused may have taken to ascertain whether the complainant was consenting.
3. Require the judge to instruct the jury in every case that they must consider the steps that an accused took in establishing consent.

Preliminary proposal: (Option 2)
The Crimes Act 1961 be amended to require that, when determining whether the accused had reasonable grounds to believe the complainant consented to sexual activity, the court must have regard to all the circumstances relevant to the case including any steps the accused may have taken to ascertain whether the complainant was consenting.

Questions

PART TWO: EXTENDING THE RAPE SHIELD

Extending the rape shield

96. A rape shield law is a law that limits an accused's ability to cross examine a complainant about their past sexual behaviour. In New Zealand, evidence about a complainant's past sexual behaviour with anyone other than the accused must be highly relevant to be permitted.

Current New Zealand law

97. The Evidence Act 2006 protects complainants from certain questions and evidence about their reputation and past sexual experience. Section 44 of the Act states:
    1. In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.
    2. In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.
    3. In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it."
98. Therefore:
    • evidence of sexual experience between the complainant and any person other than the accused is excluded without prior agreement of the judge; and
    • evidence of sexual experience between the complainant and the accused is allowed.
99. While there must be some foundation for putting this evidence before the jury, there is some debate about the extent of evidence required in New Zealand.

Other countries

100. Evidence about the complainant's sexual experience prior to the offence charged is restricted in all Australian States and Territories. However, the nature and extent of the protection of the law differs considerably across jurisdictions. Each jurisdiction has established a process in which any party seeking the admission of evidence of previous sexual history must apply for and obtain permission of the court.
101. Evidence of sexual reputation is also restricted. The rape shield in all states except Northern Territory and Australian Capital Territory covers all sexual history including that with the accused, meaning that such evidence is presumed to be inadmissible in the first instance.

102. The rape shield law in the 1992 Canadian Criminal Code restricts defence lawyers from questioning sexual assault victims about any of their sexual history, even their history with the accused. Under the law, strict tests must be met before the defence can use evidence of the complainant's past sexual history in order to discredit the testimony or imply that the complainant was more likely to have consented to the sexual activity in question.
103. Rape shield law preventing evidence regarding the complainant's sexual history with the accused was first introduced in 1982. However, this law was struck down by the Supreme Court in 1992 for contravening the Charter of Rights and Freedoms and preventing the defence from mounting a full defence of the accusations against their client.
104. As a result, the Canadian Parliament introduced a new law to minimise the number of occasions in which a complainant's sexual character could be brought up in a sexual assault trial. This second enactment of the rape shield has so far withstood legal challenge.

105. A rape shield law came into force in the United Kingdom in December 2000, making evidence led by the defence of a complainant's sexual past inadmissible in deciding whether there was consent unless it falls within one of four exceptions. [25] The law was introduced because judges were thought to be too freely exercising their discretion to allow defence counsel to cross-examine rape complainants.
106. None of the exceptions explicitly permits evidence of past sexual behaviour with the accused to be admitted where this is considered to be relevant to the issue of consent. The House of Lords decided that this omission was in conflict with Article 6 (the right to a fair trial) of the European Convention on Human Rights, and therefore it interpreted the similarity exception (section 41(3)(c)) as permitting such evidence where it was so relevant to the issue of consent that to exclude it would endanger the fairness of the trial. [26]
107. In a recent evaluation of cases since the law change, the rape shield was found to be working effectively, although some cases gave cause for concern because evidence of sexual history was being admitted in situations where its relevance was less than clear. Evidence of sexual history was allowed in just under a third of cases studied. [27]

108. In New Zealand, the Evidence Act 2006 provides a partial rape shield as evidence of sexual experience between the complainant and any person other than the accused is not allowed without prior agreement of the judge. Evidence of sexual history between the complainant and the accused may be raised in open court without any prior consideration of the relevance of the evidence to the case. As with all evidence, this can be challenged on the grounds of relevance.
109. New Zealand now stands out as being one of the few countries where evidence of sexual history between the complainant and the accused is allowed, even if it can be objected to. Other countries take the approach of generally prohibiting such evidence, and allowing it once the judge is satisfied of its relevance.

110. Some people argue that the prior sexual relationship between the complainant and accused is never relevant. There is concern that allowing admission of evidence about previous sexual experience with the accused is inconsistent with the notion that a person should consent to sexual activity on each occasion. Consent to sexual activity on one occasion should not imply that a person automatically agrees to the sexual activity on another occasion.
111. However, others argue that the existence of a prior sexual relationship between the complainant and accused is always, or at least often, relevant. A sexual history may lead an accused to consider that consent was more probable than not. Such evidence may also provide support to a defence on reasonable grounds that the complainant was consenting. Some people consider that the accused would be denied a fair trial if this type of evidence was not admitted. As noted above, challenges based on this argument were made to laws passed in Canada and the United Kingdom. The response in those two countries is to allow evidence of sexual history between the complainant and accused where this is considered relevant. However, as this discussion shows, the relevance or otherwise of such evidence is debated.
112. Different views about the relevance of a sexual history between the accused and the complainant do not always distinguish between the fact of such a history and the nature of that history. For example, it is likely that the fact that there was a sexual history will be more relevant to determining issues of consent than the nature of that history. Giving evidence and being cross examined about the nature of any sexual history can be distressing for complainants.

113. Allowing evidence of previous sexual history between the complainant and accused potentially allows irrelevant personal matters to be raised in open court. The provision relies on prosecution counsel objecting at the time that the evidence is raised, but even if the evidence is ruled inadmissible, the jury has heard that there was a sexual history between the complainant and the accused. Some defence counsel may choose to lead such evidence knowing an objection will be raised.
114. This kind of questioning by defence counsel may divert the attention of the jury from the behaviour of the accused at the time of the alleged offence, to the behaviour of the complainant on earlier, unrelated occasions. Such evidence is used to discredit or unsettle the complainant by casting aspersions on the complainant's character, resulting in victim-blaming. This approach can also been seen as an invasion of the complainant's privacy. There is also a view that bringing sexual history issues into the trial means that an accused person is more likely to be acquitted of the charges against them.

115. There are also concerns about what the change to prohibit evidence of sexual history between the accused and the complainant would mean in practice. The number of pre-trial applications for leave to cross-examine about sexual history could increase, leading to potentially stressful delays for the complainant.
116. There could be further delays if pre-trial applications are appealed.

1. No change: retain the rape shield only in relation to sexual history between the complainant and people other than the accused.
2. Extend the rape shield so that evidence about previous sexual experience between the complainant and any person, including the accused, is inadmissible without prior agreement of the judge.

Preliminary proposal: (Option 2)
The Evidence Act 2006 be amended to extend the rape shield so that evidence about previous sexual experience between the complainant and any person, including the accused, is inadmissible without prior agreement of the judge.

Questions

6. Do you support the preliminary proposal (option 2, above) to amend the Evidence Act to extend the rape shield so that evidence about previous sexual experience between the complainant and any person, including the accused, is inadmissible without prior agreement of the judge? Why, or why not?

PART THREE: ALTERNATIVE MODELS

Introduction

117. So far, possible changes to the law have been discussed that aim to strengthen the current legal framework. However, low reporting and conviction rates suggest that there are larger problems with the current framework which indicate that other models and practices should be considered. In this section we discuss some of these alternative models, using examples from New Zealand and overseas.
118. There is a growing international recognition that more substantial changes, including alternative models and practices, have the potential to improve our response to sexual offending. A number of other countries have introduced new models, including specialist courts, co-ordinated crisis responses and new case management procedures.
119. In New Zealand, the Law Commission has recently come to the view that alternative models should be considered alongside changes to the current adversarial system. This is because some issues stem from the nature of the adversarial system itself, rather than with concerns with the law. The Commission has recommended an inquiry into whether the present adversarial trial process should be modified or replaced with some alternative model, either for sexual offences or for some wider class of offences. The Commission has also recommended that the Taskforce for Action on Sexual Violence should be asked to define the issues and possible options that should be considered by that inquiry.
120. There are also issues with the ability of the current criminal justice system to respond to the diverse needs of victims and offenders. Sexual violence is most often committed by someone known to the victim. There are questions about whether the adversarial system is best-placed to deal with these types of cases as the law evolved in the far rarer context of stranger attacks.
121. Māori women have twice the risk of being victims of sexual violence than other women. [29] Māori are also over represented as offenders, [30] suggesting alternative models should accommodate Te Ao Māori. The Pacific community is also likely to have particular needs. A 2001 study of victims found recruiting Pacific participants to the study more difficult than recruiting Māori and European participants. It was considered that this may indicate a greater reluctance among Pacific people to define their experiences as crimes and/or to disclose sexual interference or sexual assault to anyone, rather than real differences in life experience. [31] Other cultural groups, including migrant and refuge communities, require a tailored and appropriate justice system response.
122. Women with disabilities also have increased risk of becoming victims of sexual violence. Overseas studies indicate that women with disabilities are raped and abused at a rate at least twice that of the general population of women. [32] The criminal justice system's response to this group of victims could be improved.
123. Historic sexual offending is another area where the adversarial system has been shown to have evidential and other limitations.
124. While serious offending should be met with a strong response, there is also anecdotal evidence that long sentences deter some victims from reporting sexual violence.
125. For all of these reasons, we are taking this opportunity to seek your views on alternative models. A number of alternative models and practices are discussed, along with examples from overseas countries. Feedback on this discussion document will be used to help define issues and options for change, which will then be developed for consideration by the government next year. We also welcome other ideas and alternatives that may not be discussed here.

An inquisitorial approach to criminal trial procedure

126. Numerous concerns with the adversarial criminal justice system have led some people to consider whether an inquisitorial system would be a more appropriate model.
127. An inquisitorial system, common in many continental European countries, is an alternative model to the adversarial system used in common law countries including New Zealand. Often the distinctions between the two systems are unclear, as a number of countries incorporate features of both systems. An option for New Zealand may be to incorporate aspects of inquisitorial systems within our adversarial system, as already happens in some courts and tribunals, rather than to adopt an entirely new approach.
128. The inquisitorial system is generally described as a system that aims to get to the truth of the matter, through extensive investigation and examination of all evidence. The adversarial system assumes that truth is most likely to result from the open competition between the prosecution and the defence to make the most compelling argument for their case. Critics of the adversarial approach argue that the pursuit of winning often overshadows the search for truth.
129. One of the key features of inquisitorial systems is the role of the investigating magistrate. These magistrates are primarily responsible for supervising the gathering of evidence, and actively steer the search for evidence. The investigating magistrate also questions the witnesses, while lawyers play a different role, such as suggesting routes of inquiry to the judge and asking further questions of the witnesses. The investigating magistrate will then decide whether charges should be brought. In adversarial systems, it is lawyers for each party who present the arguments and who question and cross-examine witnesses.
130. In inquisitorial systems the judge presiding over the trial will be a different judicial officer than the investigating magistrate. In general, judges have increased judicial discretion and exercise a larger and more active role than judges in adversarial systems.
131. Also, the rules around admissibility of evidence are significantly more lenient in inquisitorial systems. More evidence is likely to be admitted as part of the process of the search for truth, regardless of its reliability or prejudicial effect. In both systems the accused is protected from self-incrimination and guaranteed the right to a fair trial. However, some commentators view adversarial systems as offering stronger protections for defendants in their interpretation of the right to silence.
132. A key principle in adversarial systems is the presumption of innocence. The presumption of innocence is coupled with the burden of proof, which puts the burden on the prosecution to prove the accused's guilt beyond reasonable doubt. Who holds the burden of proof, and the level of proof required, varies between inquisitorial systems in different countries.
133. There is no evidence an inquisitorial systems result in higher conviction rates for sexual violence offences. It is mostly agreed "that the two systems generally reach the same results by different means." [33] However, some people argue that the less restrictive approach to evidence of the inquisitorial system is more suited to sexual offences, and in particular to historic offences.

Restorative Justice — New Zealand

134. In New Zealand there is legislative provision for the use of restorative justice at various points in the criminal justice system including pre-sentence, following a guilty plea, post-sentence and as part of the Police Adult Diversion Scheme. Restorative justice gives victims a voice in the criminal justice system and provides opportunities for victims to be involved in determining responses to the offending that, to the extent possible, repair the harm caused to them and to the community, and that hold the offenders accountable. Victims are central to the restorative justice process and choose the extent of their participation. A restorative justice meeting can only be held if the victim and the offender agree to take part, and if the offender admits guilt.
135. By taking part in restorative justice victims can tell the offender how they have been affected, have a say in how the harm can be repaired, and begin to resolve some of the effects of the offence. A number of factors are considered before a restorative justice meeting between the offender and victim is held, including the physical and emotional safety of victims.
136. Carried out appropriately, restorative justice can provide a more meaningful and constructive experience for the victim. While victims vary in their desired outcomes, they often want information about what actually happened, why it happened and specifically, why it happened to them. Often the only person who can provide these answers is the offender. Restorative justice can give victims a sense of justice through allowing them to tell their stories, in their own words, and in a place of safety. This process can result in a sense of validation for victims among their family, by the offender and by the community at large. Victims, especially victims of childhood sexual abuse, can feel less isolated. Offenders can take responsibility and show accountability for their actions, and be seen to do this by their victims. Further, the responsibility of ensuring actions are carried out (for example, attendance at a treatment programme) is put on the offender. [34] Benefits can be experienced because offenders may gain an understanding of the impacts of the harm caused, as well as engaging in a process of how to put this right. Where the victim and offender are prepared to engage in the process, both can gain more from it than from a conventional justice process.
137. The use of restorative justice processes in sexual violence cases may not always be appropriate. The particular dynamics of sexual violence, including the power imbalances inherent in this type of offending, can pose significant risks to the physical and emotional safety of the victim. Risks include those of re-victimisation and re-traumatisation. Particular consideration would need to be given to the factors to be taken into account when considering whether a case is appropriate for a restorative justice process. It is expected that specific service standards would be required for cases involving sexual offending and that these would be developed by drawing on specialist knowledge in the service sector. With these standards in place, restorative justice could provide a useful approach to sexual offending.
138. Project Restore, launched in August 2005, provides a restorative justice option for victims of sexual offending. Project Restore is run by an executive committee drawn from member groups including Auckland Sexual Abuse HELP, SAFE Network, Rape Prevention Education and Restorative Justice Auckland Trust. Project Restore is aimed at sexual assaults in which the attacker and victim know each other, and is intended to meet the victim's need for acknowledgment of wrongdoing from an attacker. Some cases are referred from the Court, where a guilty plea is entered. Other cases are referred from community groups, with Project Restore offering a process outside of the court system. When established, the focus of Project Restore was expected to provide restorative justice in historical cases. Best practice guidelines are currently being developed and an evaluation is underway.

Specialisation

139. Examples of a specialised response to sexual violence include specialist support people, co-ordinated and tailored multi-agency responses, specialised police responses, specialist courts, and specialist Crown prosecution units. These approaches are now discussed, using examples from overseas.

140. Sixty-two sexual offences courts operate in South Africa, dealing with sexual offences against women and children.
141. The sexual offences courts aim to decrease the secondary trauma to victims of sexual abuse, increase reporting of sexual violence and increase the conviction rate. There is some evidence that these matters have been improved. [35] Additionally, the first sexual offences court in Wynberg appeared to improve efficiency and alleviate the case loads of other Magistrate's courts. [36]
142. The procedures of the sexual offences courts are customised for sexual offence victims. National guidelines have been developed with training specific to working in sexual offences courts. However, large caseloads and a lack of collaboration across government agencies are considered to have limited the effectiveness of the courts. [37]
143. The potential benefits of sexual offences against women and children:
     • the ability for lawyers and judges to develop subject expertise which can lead to greater efficiency and a higher quality of service;
     • the potential for a greater degree of consistency in court processes;
     • the ability to draw special attention to a class of offence that would otherwise not receive the same attention in general courts;
     • the potential to improve coordination of social and support services by bringing all involved parties together.
144. The establishment of the first specialist sexual offences court was also thought to have brought about "a shift from a prosecution-driven judicial system to a more victim-centred approach." [38]
145. Other advantages of specialist sexual offences courts include the potential to use different procedural and evidential rules, and "the ability to have the proper facilities (for example, separate waiting rooms, CCTV equipment) appropriately trained staff and counsel and judges with the relevant expertise." [39]
146. Potential disadvantages of specialist sexual offences courts have been identified as:
     • "the reluctance of counsel or members of the judiciary to 'specialise' in this area of the law;
     • the 'privileging' of sexual offences over other offences which may have similar impact on victims, for example, domestic violence and other serious assaults, or alternatively, treating sexual offences as less serious as those which are the subject of 'usual' proceedings;
     • and, the invariable issues of increased cost." [40]
147. Specialist courts may also receive criticism that the court setup is not impartial. Judges who specialise may be accused of losing contact with the judicial system as a whole and becoming biased in their judgements. [41]

148. The Specialist Sex Offences Unit (the Unit) in the Office of Public Prosecutions in Victoria, Australia, was established in April 2007 to provide a specialised approach to sex offences. Crown prosecutors, solicitors and advocates are located in the same unit and work as a team. The Unit prosecutes indictable offences that are heard in the Melbourne County Court or Supreme Court.
149. The Unit aims to prosecute cases in a way that minimises additional trauma to victims, and works very closely with the Witness Assistance Service to ensure that victims have information and support. Social workers from the Witness Assistance Service usually attend a legal conference between the witness and the legal team about the case, and help ensure there is effective communication between the legal team and the witnesses. Where possible the same solicitor will prepare and manage a case from start to finish, leading to greater consistency and continuity in cases. Eventually, the Unit is expected to handle more than 500 prosecutions each year.
150. The Unit provides training to its own staff, and to private barristers who will prosecute most sex offences on behalf of the Crown. The training takes into account the unique features of sex offences, and will help ensure a more consistent approach to the prosecution of sex offences across the state. In addition, the Unit aims to raise the profile of sex offence matters to educate lawyers and improve confidence in the way sexual violence offences are handled in the criminal justice system.
151. Potential benefits of specialist prosecutors have been listed as including "development of expertise in prosecuting sexual offence cases, the potential to challenge rape myths by taking on 'unprosecutable' cases, a more active role in building cases and contact with the complainant, and more likely to provide continuity of personnel." [42]

152. As well as specialist courts and specialised investigation and prosecution units, a number of overseas countries have changed their response to victims, especially the crisis response. Changes to crisis responses have attempted to improve the care of victims so that they are less traumatised by the need to gather forensic evidence and obtain a statement. As complainants are often witnesses at trial, improving evidence and meeting the needs of complainants should result in more robust cases and therefore meet the needs of the justice system at the same time. Although there is evidence of improved complainant satisfaction, as well as increased rates of reporting there is not yet evidence of an increase in detection or conviction. [43]

153. A number of countries have established Sexual Assault (Referral) Centres (SACs/SARCs). The United Kingdom operates SARCs throughout England and Wales, two sexual assault centres have recently been opened in Victoria, Australia, and South Africa has established ten Thuthuzela Care Centres.
154. SACs/SARCs tend to be limited to responding to recent sexual assaults. Integrated and coordinated services are provided so that victims of sexual assault do not have to deal with different agencies in different locations. SACs/SARCs are expected to encourage more people to report sexual assault, while reducing the trauma victims experience in the criminal justice system.

155. Ten Thuthuzela Care Centres (TCCs), are located in public hospitals in South African communities where the incidence of rape is particularly high. TCCs are 24-hour one-stop service centres where victims have access to police, counselling, doctors, and prosecutors. There are plans to establish 80 TCCs by 2010. Thuthuzela is a Xhosa word meaning comfort.

156. There are 20 sexual assault referral centres operating across England and Wales, with a further 18 expected to open this year. Many SARCs are located in hospitals, as this allows access to medical staff and equipment. The SARCs bring agencies together in one place so victims can receive medical care, counselling, and legal advice. SARCs also assist police by providing centralised facilities where police can meet with victims, conduct forensic examinations and gather evidence.
157. In an evaluation of SARCs by the Home Office in 2004, it was found SARCs were valued very highly, and services that were particularly appreciated by victims included the "automatic provision of female examiners and support staff; proactive follow-up support; case tracking; advocacy; and easy access through the telephone to advice and information."
158. SARCs have been criticised because they have played a role in a diminished need for the services of organisations like Rape Crisis in the United Kingdom. This is because other choices have been made about which support services to involve in the SARC model. Service providers and Policing Units in the United Kingdom also tend to be run by local authorities, which have a larger and different role to local authorities in New Zealand.

159. Two new sexual assault centres in Frankston, which has one of the highest sexual assault reporting rates in Victoria, and Mildura, were launched in 2007. The centres bring police, sexual assault counsellors, medical staff and victims' advocates together in one central location.
160. Investigators specialising in sexual assault from Victoria Police's newly-created Sexual Offences and Child Abuse Investigation Team (SOCIT) are based at the centres. Specialised teams are appointed to a case from the time of complaint, and remain on the case during the investigation process and through the court proceedings. Victims are expected to be able to establish an ongoing relationship and build trust with one police member from the time they step through the centre's doors.

Conclusion

161. In this section, a number of alternative models and practices have been described. We welcome your views on these examples, as well as your general feedback to the questions below.

Questions

Footnotes

13. An accused is a person charged with a criminal offence. A defendant is a person being prosecuted in a criminal trial. A complainant is a person making a formal complaint to the Police.
14. R v Brewer (CA 516/93) 26 May 1994.
15. R v S (1992) 9 CRNZ 490. This was a case where young complainants (aged 13-15) had apparently passively acquiesced to the sexual activity, but where it was argued that there was an absence of choice as a result of pressure from the accused, and because they had been made to "feel wrong or bad" and to anticipate "problems" if they did not cooperate.
16. R v Cox (CA 213/96) 7 Nov 1996. See also R v Herbert (CA 81/98) 12 Aug 1998.
17. R v Isherwood (CA 182/04; CA 258/04) 14 March 2005.
18. Drug Rape Trust (2004), Submission to Law and Order Select Committee, Crimes Amendment Bill (No 2) 2004. Auckland, New Zealand.
19. R v Gutuama (CA275/01); 13 Dec 2001.

20. Lievore, D. (2005) Prosecutorial decisions in adult sexual assault cases, Australian Institute of Criminology, Canberra, Australia.
21. These included submissions from the Wellington Women Lawyers Association and the Auckland Sexual Abuse HELP Foundation.
22. These included submissions from the Wellington Women Lawyers Association and the Auckland Sexual Abuse HELP Foundation.
23. Ibid
24. Wellington Women Lawyers Association (2004), Submission to Law and Order Select Committee Crimes Amendment Bill, (No. 2) 2004. Wellington, New Zealand.
25. The four exceptions are; any relevant issue that does not relate to consent; evidence of sexual behaviour on or about the same time as the sexual activity in question; similar behaviour; and evidence to rebut prosecution evidence of sexual history.
26. R v A (2001) 3 All ER 1.
27. Kelly, L., Tempkin, J. and Griffiths S. (2006) S41: an evaluation of new legislation limiting sexual history evidence in rape trials, Home Office Online Report Series 20/06.
28. Law Commission (2008) Disclosure to court of defendants' previous convictions, similar offending, and bad character, p 158. Wellington, New Zealand.
29. Mayhew, P. and Reilly, J. (2007) The New Zealand crime and safety survey 2006: Key findings. Wellington, New Zealand: Ministry of Justice.
30. Conviction and Sentencing Report (2006) NZ Police.
31. Morris, A., Reilly, J., Berry, S. and Ransom, R. (2003) The New Zealand National Survey of Crime Victims 2001. Wellington, New Zealand: Ministry of Justice.
32. Sobsey, D. (1994) cited in Howe, K. (2000) Violence against women with disabilities: An overview of the literature. http://www.wwda.org.au/keran.html
33. The Law Library - American Law and Legal Information, American Law Encyclopedia Volume 5, http://law.jrank.org/pages/7663/Inquisitorial-System.html.
34. It should be noted that the connection between restorative justice programmes and offender treatment programmes has yet to be fully worked through.
35. Walker, S.P., Louw, D.A. (2003) ‘The South African court for sexual offences', International Journal of Law and Psychiatry 26: 73-85.
36. Rasool, S. (2000). Sexual offences courts: do more courts mean better justice? Nedbank ISS Crime Index, 2: 11-14.
37. Walker, S.P., Louw, D.A. (2003) ‘The South African court for sexual offences', International Journal of Law and Psychiatry 26: 73-85.
38. Ibid.
39. McDonald, E. (2005) ‘Sexual violence on trial: Assisting women complainants in the courtroom.' Women's Studies Journal 19:2, 107-130.
40. Ibid.
41. Walker, S.P., Louw, D.A. (2003) ‘The South African court for sexual offences', International Journal of Law and Psychiatry 26: 73-85.
42. Kelly, L. (2005) ‘Promising practices addressing sexual violence', Child and Woman Abuse Studies Unit, London Metropolitan University, London, p 15.
43. HM Crown Prosecution Service Inspectorate (2007) Without Consent: A report on the joint review of the investigation and prosecution of rape offences p 35.
44. Lovett, J., Regan, L. and Kelly, L. (2004) Sexual assault referral centres: Developing good practice and maximising potentials, Home Office Research Study 285, London, Home Office, p xiv.

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