KEY POINTS:
Sex abuse help groups are welcoming plans to improve justice around sexual offending.
The Ministry of Justice has issued a public discussion document, Improvements to Sexual Violence Legislation in New Zealand, on proposed changes to the Crimes and Evidence Acts.
One of the proposals is that accused sex
offenders, arguing their alleged victims consented to what happened, may have to prove in court how they gained consent.
The ministry is also suggesting that the rape shield law, which limits the accused's ability to cross-examine a complainant about the past sexual behaviour, be extended to include previous sexual experience between the complainant and the accused.
A 2001 study found 19 per cent of women and 5 per cent of men had experienced sexual violence at some stage, and young women and Maori women were at a greater risk.
An estimated 90 per cent of sexual offences went unreported and the conviction rate for sexual offences is lower than for other crimes.
It also found that many victims who had gone through a trial said they felt their behaviour was scrutinised more than the accused.
The ministry is also seeking feedback on an alternative to the courts' adversarial system, and whether an inquisitorial system might be a better option.
Under that system an investigating judge would supervise the gathering of evidence, question witnesses, and lawyers would provide a different role.
It has been argued that an inquisitorial system is better suited to sexual offences.
The ideas are being welcomed by anti-sexual violence groups, but a law expert is urging caution before rushing into changes.
Paulette Benton-Greig, agency development manager for the Auckland Sexual Abuse Help Foundation, who is on a working group looking at the document, said the ideas were workable and had been successfully implemented in England, Canada and Australia.
There were a number of reasons for sexual violence under-reporting, and attrition through the system meant many cases were not brought to trial.
Ms Benton-Greig said groups had been trying for years to improve the system for sexual violence cases, including possibly the inquisitorial system.
"We want to make the trials less about credibility and more about culpability," she said. But Auckland University associate law professor Bill Hodge questioned whether the ministry was "pushing political correctness in the courtroom too far".
"We should pause before we take away further rights of defendants," he said.
"It should be for the state to prove the defendant intended to go ahead knowing there was no consent."
Dr Hodge said it put the burden of proving consent on the defendant, and could lead to the only way to prove consent would be to have it in writing before the event.
Dr Hodge also said the inquisitorial process - essentially the opposite of the jury system - was worthy of serious debate about what it would mean.
"Before we send somebody away for 20 years we do want the Crown to prove it beyond reasonable doubt. We don't want someone on a crusading mission."
The discussion document is available on the Ministry of Justice website. Submissions close on September 30.
- NZPA
