Spare victims in-court wrangle over sexual history, review urges

Photo / Greg Bowker

Victims in rape cases should not have their sexual history paraded in front of a court and jury because it adds stress to an already ghastly experience, the Law Commission says.

As part of a review of the Evidence Act, the commission said a provision which could lead to a court hearing a complainant's previous sexual conduct needed to be changed for the sake of the court and the victim.

President Sir Grant Hammond said: "Unfortunately in some rape cases, aspersions are cast on the complainant as to her previous sexual conduct or her conduct with the particular defendant.

"At the moment, that's dealt with at trial. So there's a fight within a fight at trial as to whether that evidence is admissible or not."

The commission recommended that any discussion of sexual history should be dealt with before trial. It also advised that complainants be notified if the defence intended to cross-examine them.

Sir Grant said the changes would increase efficiency in the courts, because juries would not have to wait while lawyers fought over whether evidence was admissible. It would also ease the stress on complainants.

"It's always going to be a ghastly, stressful experience but ... this will reduce the stress in part," he said.

A spokeswoman for Justice Minister Judith Collins said it was too early to say whether the change would be implemented.

The recommendations stemmed from a 2011 research project by Victoria University legal experts Elisabeth McDonald and Yvette Tinsley, which suggested that rape victims be removed from hearings altogether.

"We didn't feel we could go that far. At the end of the day, the complainant's got to be prepared to come into the witness box and say, 'That's him and this is what he did'," Sir Grant said.

Green Party women's affairs spokeswoman Jan Logie said the changes alone would not radically improve the courts for victims, and called on Ms Collins to restart work on alternative processes.

A proposal to get rid of jurors for sensitive cases involving children or sexual assault victims was shelved by Ms Collins last year.