We have heard a lot lately about the low conviction rates in sexual violence cases – although, in fact, conviction rates for sexual violation are actually in line with those for some other violent crimes.
There is a misconception that this is because there is something wrong with the criminal justice system. I do not accept this.
There is no criticism of the need to respect the rights of victims of sexual offending. That is as important to me as the next person.
I was a senior Crown prosecutor for 11 years, prosecuting many sexual trials before I became a defence lawyer. Although my view on the criminal justice system as it applies to sex trials will be unpopular with some, I feel it is my duty to correct some misconceptions.
Rape is a devastating crime for the victim. A false conviction for rape, however, is a devastating injustice for an innocent defendant.
A conviction for sexual offending means years in jail, often followed by no employment, travel, and very real restrictions for the rest of one's life. The stakes are enormous and the jury has to get it right. Measures to depart from traditional jury trials for defendants may be attractive but that does not make them just or desirable.
The article "Rebalancing the scales; Is there a better way to get justice for rape victims?" which appeared recently, relied upon a university professor's opinions.
This is different from the experience of courtroom lawyers. Much was made of the re-victimisation from being cross-examined in court. Detailed questioning is unpleasant, but necessary if serious allegations such as these are brought. However, the implication that lawyers harass rape complainants is a modern rape-trial myth. We have an obligation to put our case to complainants out of fairness so they have an opportunity to respond.
It has been law for a long time that New Zealand lawyers cannot cross-examine complainants about their sexual history or reputation unless a judge decides it is relevant and a miscarriage of justice would result without it. It is unfair to suggest that slut-shaming is a hallmark of cross-examination. Complainants now have the protection of automatic name suppression, support people in court, and often appear via CCTV. Judges intervene where lawyers (infrequently) get close to the line.
It is important to distinguish between bullying and testing the evidence where the allegations are denied. The Crown must prove not only that a complainant was not consenting, but that the defendant did not have a reasonable belief in consent. Complainants who can't recall events and have gaps in their accounts must have their narrative tested so a jury can decide what the truth is.
Working out the truth of what occurred where sexual assault is alleged is difficult. Sex happens behind closed doors, often without witnesses or other corroboration. This leads to the "she said/he said" dilemma for the jury. How can they be sure beyond a reasonable doubt that the complainant, and not the defendant, is telling the truth? The Crown has to prove that a defendant had sex with a complaint knowing there was no consent. A reasonable belief in consent is, and must be, a defence in law.
Alcohol is often a relevant factor. Many happy consensual sexual encounters happen after a few drinks or even a few too many. There is also recreational drug use, which can impact decision-making. A reluctant agreement can be regretted afterward. Memory blackout is common with alcohol and some drugs. Complainants may not remember what they did and assume they didn't consent. Memory itself is fraught. There is scientific evidence that our memories are re-created. This is "confabulation", where memories are recreated post blackout from past experiences, feelings, and thoughts.
Sometimes the complaint arises years or decades later. People make complaints to the police about a party that happened 20 years earlier. Think back to a party in your 20s, when maybe you met someone and had a sexual encounter. You were both a bit drunk and you thought they were "into you". The police contact you now, 10 or 20 years later, tell you she didn't want sex that night and that you are to be charged with rape. There is no statute of limitation in New Zealand and you can be prosecuted 10 years later – or 30 or 40.
We also see even more complexity, given the prevalence of internet pornography. There is an increasing interest in experimental and extreme sex. What may not appear to be consensual may be, or at least be believed to be, consensual by the defendant. Rough sex, violence, "breath-play" and role-played rape can all be part of a consensual sexual encounter. You start to see how things are all not black and white. This explains why jurors are not sure where the truth lies and why they bring back not guilty verdicts.
There are also cases where complainants do lie. It is rare but it happens.
Complicated breakups, mental health issues, child custody fights, suggestive children (such as the Peter Ellis case), and affairs may underlie a motive to lie. I believe that few complainants lie - actually fabricate claims about being raped when they were not - most fall within these grey areas. But I was not there, all I have is the defendant's instructions, which are our duty as defence counsel. These are codified in the Evidence Act 2006, as they should be.
This brings me to the maxim on which the criminal justice system is premised: better 100 guilty men go free than one innocent man goes to prison. It is irreconcilable if you start with the premise that all complainants are telling the truth.
Juries have been the core of criminal justice for hundreds of years because they are well-positioned to judge matters of human nature. A group of mixed ages, gender, and life experiences are more likely to objectively and fairly assess credibility and reliability based on their "real world" experience.
It is critical that defendants remain the core focus of the criminal justice system. They are, and must remain, innocent until and unless proven guilty.
We must push against a criminal justice system that starts with the presumption that complainants are telling the truth. Yes, I accept many are telling the truth, but there is much greyness. A complainant can honestly have not consented but, in that same encounter, a defendant can honestly believe there was consent. Both are right. This doesn't take away from the complainant's negative experience, but also it doesn't mean the defendant is guilty of rape.
If an allegation is brought that a person is a rapist, then that allegation must be proven beyond a reasonable doubt. The consequences are huge. Many of our defendants are before the courts for the first time, living otherwise prosocial and productive lives and now facing a long term of imprisonment and destruction of their lives. Many are young.
The question I ask is: if you, your brother, or your son is charged with rape for what was believed to be a consensual sexual encounter, will you be grateful that he has the right to be presumed innocent and the right to a fair trial?
There are many broader ideas for the prevention of sexual offending, which I endorse: consent training, stopping the objectification of women, and drug and alcohol education.
The law can change too if we approach the issue intelligently and recognise both complainants and defendants have rights. For instance, I believe there is scope for a restorative model of the criminal justice system for sexual offending – which was my LLM thesis topic in 2001.
The criminal justice must remain fundamentally a contest between the state, which prosecutes on behalf of the community; and the defendant, who is alleged to have broken that code.
The question must be "has the defendant broken the law?" not "do we believe the complainant?"
We need to pause and take care that we do not remove the fundamental rights of defendants, protected by the New Zealand Bill of Rights Act, in the name of victims' rights.
By tipping the scales towards victims' rights, we risk miscarriages of justice and innocent men being jailed, with their lives thereafter, ruined.
• Emma Priest is an Auckland criminal defence lawyer and member of the Auckland District Law Society Criminal Committee.