Private life laid bare for all to see

The distress on the faces of Sophie Elliott's closest friends was plain to see, as they were forced in court to answer questions about their dead friend's sexual history. Dancing with male strippers on a trip to Melbourne, ending up in bed with an Australian man on the Gold Coast on one night, sex with a Dutch traveller on another – every humiliating and seemingly irrelevant detail.

Then Clayton Weatherston's five days of testimony.

"She told me that she'd missed me all weekend and that she'd wanted to have a video of me having sex with her because she wanted to possess me," he told the court. "I can keep going ..."

Lesley Elliott, Sophie's mother, said yesterday: "I still feel upset her life was played out there so publicly."

So, after Weatherston's conviction for the brutal murder, will the Govern-ment bar such gratuitous smearing of a slain victim's sexual history?

The answer is no.

There's been acclaim for justice minister Simon Power's plans to abolish the partial defence of provocation to a charge of murder, and to bar evidence about rape victims' previous sexual history with their alleged attackers.

But Power does not intend to go so far as to ban the sort of sex smear that caused the greatest public offence last week, and no doubt the greatest pain to Sophie's family.

"An accused's ability to raise a victim's sexual conduct in a homicide case generally occurs where the partial defence of provocation is raised," the minister's spokesman said. "If the defence of provocation is removed, as is intended, that would no longer be the case."

Labour's justice spokeswoman, Lianne Dalziel, says such a change should at least be considered. And Dr Kim McGregor, director of Rape Prevention Education, says it is absolutely necessary.

Simon Power's argument is that by removing the provocation defence, he will remove the excuse for defence lawyers to delve into the victim's sexual conduct.

But last month, an Auckland High Court jury was told that An An Liu, found dead in her husband's car boot, naked with a tie around her neck, might have died accidentally in a case of auto-erotic asphyxiation – a sex act gone wrong.

Defence lawyer Chris Comeskey did not make this suggestion about Liu's sexual predilections as part of a provocation defence. He was trying to plant doubts about Liu's sexual behaviour, and the way she died, that would cause his client to be completely acquitted. It did not work.

Says McGregor: "It's similar to the Sophie Elliott case, where the victim has been killed and they're not able to defend themselves, defend their reputation. It should not be allowed."

Also last month, David Bain was acquitted at his retrial for the alleged murder of his mother, father and three siblings. His defence introduced evidence that Laniet Bain, his 18-year-old sister, had told people of incestuous abuse by her father – evidence that had been ruled out at Bain's first trial.

The implication was that the father, Robin Bain, had motivation to kill Laniet and the rest of the family. The allegations of sexual relations between Laniet and Robin were not corroborated and the prosecution showed some of her claims were entirely fantastic, including giving birth to three babies and having an abortion by the age of 12-and-a-half.

But the jury felt there was sufficient doubt that they acquitted David Bain.

Incestual sex between Robin and Laniet Bain; the auto-erotic asphyxiation of An An Liu; Sophie Elliott's infidelities: none of these, surely, is material to the question of murder?

The case of Louise Nicholas, who said she had been raped as a teenager by Clint Rickards and other police officers, helped change the law about quizzing rape victims on their sexual history.

The law is beginning to provide greater protections for the survivors of attacks, says McGregor. It should also protect the reputations of those who do not survive.

"For the victims of a killing, their family sees them put on trial," she says. "They're bereaved, they're traumatised, and then to have the person who's allegedly killed their loved one accuse them of things – it's particularly brutal."