Claims that sexual violence bill will harm Māori are unfounded
1 July 2021
Opinion: As legal academics researching in the areas of evidence, trial practice and criminal justice, we are deeply concerned about the rates of both incarceration and victimisation of Māori, write Professor Elisabeth McDonald and Associate Professor Scott Optican.
Consequently, we support initiatives aimed at addressing the disparate treatment of Māori in all aspects of the criminal justice system. Nonetheless, we strongly disagree with the views expressed by Auckland barrister Samira Taghavi on June 23.
The Sexual Violence Legislation Bill 2019 is the latest in a series of longstanding legislative efforts to improve the conduct of sexual offence trials. Writing about the bill, Taghavi contends it “will presumptively prohibit evidence pointing to innocence and destroy a defendant’s right to silence, thus increasing conviction numbers” and “railroading many innocent Māori men into jail”. These claims are unfounded.
Taghavi nowhere specifies which aspects of the bill will lead to her feared results. It neither removes a defendant’s right to silence (at or before trial), nor interferes with a defendant’s privilege against self-incrimination. Whether to give evidence at trial – or make a pre-trial statement to police – always has been, and still will be, the defendant’s exclusive choice.
Whether to give evidence at trial – or make a pre-trial statement to police – always has been, and still will be, the defendant’s exclusive choice.
Moreover, out of 75 adult rape prosecutions studied in recent New Zealand research (2010-20), the defendant made a pre-trial statement and/or gave evidence in 69 (92 per cent) of trials. This indicates a high level of defendants currently not exercising their right to silence in rape cases, decisions that obviously have not been, and will not be, impacted by the bill.
Taghavi’s claims likely centre on the suggested change to section 44 of the Evidence Act 2006, New Zealand’s version of well-established “rape shield” laws. In force since 1977, s44 provides that evidence of a rape complainant’s sexual experience with other people – not the defendant – is admissible only if it is of such “direct relevance” to the proceeding that to exclude it would be “contrary to the interests of justice”.
As the Supreme Court has noted, this is a strong test designed to protect sexual assault complainants from irrelevant and distressing cross-examination regarding their sexual history.
As the Supreme Court has noted, this is a strong test designed to protect sexual assault complainants from irrelevant and distressing cross-examination regarding their sexual history. However, it does not mean such evidence is never admitted, only that judges must scrutinise its admission. The proposed reform simply provides that detailed evidence of the complainant’s sexual experience with the defendant would also be subject to the same strong test for admissibility.
Taghavi relies on 2012 research from the United States – based on cases from one state in 1973-87– for the claim that 11 per cent of defendants convicted of sexual offences are likely to be factually innocent. However, the research actually states (page 25) that the DNA testing employed in the research was “exculpatory supporting exoneration” in 5 per cent of the cases. Moreover, while DNA evidence has been an important tool in challenging convictions based on complainants misidentifying their assailants, most sexual assault cases turn not on identification but on the issue of consent.
Accordingly, and as the American research also points out, most other studies indicate a much lower rate of false complaints and wrongful convictions. In fact, attrition studies focused specifically on complaints of sexual violence (including New Zealand research from 2015 and 2019) indicate a false reporting rate of about 3 per cent, with the vast majority of these complaints not resulting in prosecution.
Finally, Taghavi overlooks the many positives in the bill, including for Māori and their whānau. These include closing the court while victim impact statements are read, and encouraging judges to give jury directions that address misconceptions about sexual offending.
This last initiative is a step towards addressing implicit bias by jurors, which should be supported, not criticised. Far from leading to the “increased imprisonment” of “falsely accused” Māori men, the bill will help to ensure the fair and rational presentation of evidence in sexual offence prosecutions, while doing nothing to undermine a defendant’s existing fair trial rights.
Elisabeth McDonald is professor of law at the University of Canterbury; Scott Optican is associate professor of law at the University of Auckland.
This article reflects the opinion of the authors and not necessarily the views of the University of Auckland.
Used with permission from Stuff, Claims that sexual violence bill will harm Māori are unfounded, 1 July 2021.
Miranda Playfair | Media Adviser
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