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Those agitating for changes to the way sexual violence complainants are treated in courts when they give evidence will be disappointed the law has not been changed during this term of Parliament.
The Sexual Violence Legislation Bill, designed to improve court processes to lessen the risk of traumatising complainants, had its first reading last November. When we wrote about it that month, we predicted it would become law early this year.
However, while that was what might have been expected, given the enthusiasm with which it was initially received by Parliament, the Bill has provoked considerable controversy. Last month, New Zealand First put an end to any hopes it would be passed this term, indicating it had run out of time to have all its concerns addressed.
It is not news that few of the women who experience sexual violence in New Zealand are likely to complain to police. Parliament was told that of every 100 who do, 31 cases get as far as a trial with only 11 resulting in a conviction.
In a 2015 report, the Law Commission found the justice system often failed to respond appropriately to victims of sexual violence and that the requirements of the court process did not align with victims’ needs or recovery, risking further traumatising those who came forward. Further, the experience of those who did get to court could deter others from reporting offences, leading to fear and mistrust of the criminal justice process. Low reporting also meant sexual offenders were not held to account, resulting in missed opportunities to reduce reoffending and provide just resolutions.
The Bill, if enacted, would include strengthening rules around evidence about complainants’ sex lives, require judges to intervene in inappropriate questioning and address common myths and misconceptions about sexual violence where they were relevant to the case. Evidence, including cross-examination, could also be recorded on video before the trial.
However, there has been disquiet among defence lawyers who have emphasised the dangers of any threat to the presumption of innocence at the heart of our legal justice system. Suggestions the Bill as it stands would compromise the right to a fair trial have been described as "somewhat alarmist" by Justice Minister Andrew Little.
Two major concerns raised are around the pre-recording of evidence and the proposal to have a higher threshold for evidence regarding the complainant’s sexual disposition, reputation or experience, including sexual history involving the defendant. National Party members of the justice select committee have also expressed reservations about these provisions.
Among their worries about pre-recorded evidence was the lack of opportunity for the defendant to question a witness based on the conduct of the trial. However, they also pointed out that there would still be a right of recall under the Evidence Act, meaning the complainant could be recalled to be cross-examined again. They said this would "actively work against the Bill’s stated aim to reduce the extent to which a complainant may be re-traumatised by the process of cross-examination".
Defence lawyers argue sexual history is often highly relevant to the defendant’s case. Provisions allowing the defence to apply for a judge to review intended evidence about sexual disposition, experience or reputation to assess its relevance were also seen as unfair as the defence would have to disclose its hand to both the judge and the prosecution.
While the impatience of those who have sought improvements for complainants for a long time is understandable, the areas of concern outstanding are not inconsequential. For now, the matter remains in limbo. The make-up of any new government will determine whether further changes will be promoted and if progressing this Bill promptly will be high on the agenda.