Justice scale may tilt for sex victims

Louise Nicholas. Photo / Brett Phibbs

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.

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.

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.

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".

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

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

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.

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".

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.

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.

"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.

"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.

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."

CHANGING THE BALANCE

RECOMMENDATIONS
* 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.

JUDGE TO DIRECT JURY
* 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.