Kia ora koutou.
I want to acknowledge Louise, who is a great and courageous New Zealander and one of my personal heroines. And also Kim for more than a decade of advocacy and service as Executive Director of Rape Prevention Education.
In Brisbane last year, defence barrister Carl Heaton told the District Court that three women who were raped, sexually assaulted and drugged by a yachtsman might have made the claims because they regretted having sex with the man.
“Perhaps they regretted giving themselves away so freely to a man whose charming feature may have been limited to his apparent wealth and the reaility didn’t live up to the talk. Maybe these women felt they were sold false hopes and maybe bitterness and resentfulness has set in.”
In New Plymouth last year, an 18-year-old victim in a rape trial was accused by barrister Susan Hughes QC of “trying to make this dramatic.” The lawyer claimed the young woman alleged rape because she was angry and embarrassed videos were posted online.
“It seems we’ve reached a point in time when our boys are demonised and our girls canonised.”
In Wellington in 2013, barrister Keith Jefferies claimed that a woman raped in an alleyway by George Pule had made a false complaint to police six days later because she regretted having consensual sex. He said the woman could easily have prevented the attack.
“All she would have had to do was to close her legs… it’s as simple as that. Why didn’t she do that ? The reason she didn’t do that was because the sex was consensual. As easy as that.”
In England earlier this year, barrister David Osborne wrote a blog titled “She was gagging for it.” He proposed that “If the complainant (I do not call her the victim) was under the influence of alcohol or drugs, or both, when she was “raped,” this provides the accused with a complete defence. End of story and a victory for fairness, moderation and common sense.”
In follow-up verbal comments in the media he said “The protection in law that they have got seems to me to be twofold. Number One: Don’t go out in the first place. Or Number Two: If you do go out don’t get rat-arsed. If you get rat arsed, I’m sorry, you are asking for trouble. You’ve seen the news sequences of girls who, regardless of the weather, have their backsides sticking out of their dresses and their tits hanging out of the same dress.”
Mr Osborne has appeared for defendants in scores of rape trials over the past 40 years.
In the United Kingdom in 2012, music teacher Michael Brewer was on trial on charges of indecently assaulting violinist Frances Andrade. Mr Brewer’s barrister repeatedly accused Ms Andrade of fantasising and lying. Following the lengthy questioning, the victim texted a friend to say she felt as if she had been “raped all over again” by the barrister.
Ms Andrade took her own life the day after Mr Brewer started giving evidence, and after learning that the judge had directed the jury to find the defendant not guilty on five of the indecent assault charges. He was later convicted of five counts of indecent assault but acquitted on three further indecent assault and one rape charge.
We need to examine the role of defence lawyers. Until the way they operate changes, reforms to sexual assault trial processes are unlikely to improve victims’ experiences and ensure they receive justice from the legal system. Over the past 40 years, changes to sexual assault trial processes have been made in Australia, New Zealand and the United Kingdom.
But, unfortunately, research shows the changes make little difference in practice because defence lawyers and judges continue to operate in pretty much the same way they always have done. There has been no comprehensive questioning of the ethics of defence lawyers, no move to educate law students and lawyers about the realities of rape and no major changes to the rules under which defence barristers operate.
As far back as 2000, a United Kingdom study titled Prosecuting and defending rape: Perspectives from the Bar concluded that, without further examination of the practices of advocacy in rape trials and training which fundamentally challenged the attitudes of barristers, it was unlikely that the experiences of victims in rape trials would be substantially improved.
And in Tasmania, where the law was changed in 2004 to introduce an affirmative model of consent, research has found that lawyers are continuing to rely on old notions of consent and to tailor their cases to juries’ perceived views about rape, rape victims and consent to sexual intercourse.
If real change is to happen, a comprehensive review of the role, ethics and conduct of defence lawyers in sexual offence cases is required. This could include –
- Education of law students and lawyers about rape and rape myths
- Accreditation and specialist training for prosecution and defence lawyers working on sexual offence cases
- Paid lawyers for victims in sexual assault cases
- A complete overhaul of cross-examination, based on credible research rather than piecemeal rules of law developed over hundreds of years to suit a vastly different environment
- Specialist sexual offence courts
- Far tighter control by judges of the trial process
- Re-examination of the assumption that it is an integral part of the trial process to subject victims to gruelling cross-examination while allowing defendants not to give evidence at all
- An overhaul of legal ethics and the rules under which barristers operate
- Far more pro-active monitoring by judges of barristers’ conduct and reporting of breaches to lawyers’ oversight bodies.
We should also consider moving to an inquisitorial rather than an adversarial legal system. The inquisitorial system aims to get to the truth of a matter through extensive investigation and examination of all evidence. By contrast, the adversarial system is a competition between the prosecution and the defence to make the most compelling argument. Surely we want the first rather than the second?
The second topic I want to discuss is the IPCA report released on 19 March 2015.
I’m far from reassured by the report and I’m afraid I don’t accept the Police Commissioner and IPCA’s reassurances that the horrendous deficiencies revealed in the report were isolated to one police district. We simply don’t know that.
Police Commissioner Mike Bush said that the IPCA had “found no evidence of ongoing and widespread poor practice nationally.”
The IPCA itself said “most of the deficiencies identified in the Police investigations are a result of poor individual practices and cannot be said to be representative of Police child abuse investigations nationwide.”
But the ICPA didn’t actually investigate child abuse investigations nationwide. Its investigation was tightly focused on seven cases in Auckland. It is accordingly unclear on what evidence it bases the statement that there is no nationwide problem.
Indeed, the IPCA’s own May 2010 report Inquiry into Police Conduct, Practices, Policies and Procedures Relating to the Investigation of Child Abuse states quite the opposite. It found deficiencies in a number of police districts around the country. The 2015 report finds the same shortcomings. So nothing’s improved.
The only reasons we know about the widespread and catastrophic failings in the way the police dealt with the Auckland cases are because of the media publicity and the complaints made to the IPCA.
So how can we be sure that there are not other cases in which there has been no publicity and no IPCA complaints?
In fact, the accumulated evidence over more than a decade appears to confirm that there are still ongoing concerns with the way police deal with sexual assault allegations.
So what needs to happen?
- The IPCA should randomly select several police districts around New Zealand and conduct detailed reviews of the police handling of recent sexual assault cases to check whether the same issues arise as did in Auckland.
- The police should review their policy of not prosecuting young people under section 134 of the Crimes Act for sexual connection with someone under 16 when the two young people are of the same or a similar age. We need to know how widespread this policy is and whether has it been used in other cases to let young men escape prosecution for sexual offending?
My concern about this is increased by the fact that the Operation Clover report also highlighted the ages of the parties as a reason for not prosecuting. The police would like us to accept that, while there were problems with the initial Roastbusters’ investigation, Operation Clover was thorough and remedied these early deficiencies.
So the police need to explain whether in Operation Clover they also misapplied their policy of not prosecuting teenagers over sexual activity.
- Lack of emphasis on prevention – When the police initially became aware of the young men’s behaviour, they passively monitored it for a lengthy period instead of taking immediate action to stop more young women from being victimised.
What made the police think that passive monitoring was an appropriate response and in what other police districts and in what other situations do the police adopt such a response?
- The Child Protection Team which initially handled the complaints about the young men’s behaviour is a specialist police unit.
If the specially-trained CPT members did such a poor job and failed to investigate in even a rudimentary way, what is the standard of investigation of non-expert police officers in other parts of the country when they are called on to deal with sexual assault complaints?
- The police since the release of the IPCA report have continued to call for young women to “come forward.” Why are no members of the police, no community leaders and no politicians calling for the young men to come forward and own up to what they did ? Repeatedly asking the victims to come forward continues to make the victims responsible for the behaviour. It is the young men’s behaviour which needs to change, not the young women’s. Sexual violence against women is a male problem.
- Lack of understanding of the law – the IPCA report at paragraphs 80 to 90 reveals widespread misunderstanding of the law by those conducting the initial investigation. This includes misunderstanding of sections 128A and 134.These sections deal with people who are too incapacitated to consent, and with the fact that sexual conduct with a person under 16 is an offence and that consent is not a relevant issue.
The lack of understanding of the law by the initial investigators is bad enough. However, the Operation Clover report at paragraph 7.5 states that “The principal ingredient at issue in all Op Clover cases is that of consent, including the ability of the girl involved to give consent due to the effects of alcohol consumption and/ or the male party’s reasonable belief as to whether there was consent.”
I have never believed that the principal issue was consent. Section 134 is very clear in its wording: sexual conduct with a person under 16 is an offence. The girls were as young as 13. The boys knew the ages of the girls.
The IPCA puts it plainly –
“The reality is that a prosecution under section 134 says nothing about the presence or absence of consent, because it is simply irrelevant to the facts that need to be proved.”
Accordingly, the Operation Clover report’s emphasis on consent leaves a concern that the Operation Clover team also misunderstood and misapplied the law. The police need to urgently explain whether or not that is the case.
- Police attitudes to sexual assault victims – The IPCA report makes plain appears the police have more work to, particularly with the reference to Officer D’s attitude to the young woman. How often is this still occurring around New Zealand?
- Reliance on victim complaints and victim evidence – there is a concerning emphasis by the police on victims making complaints and being available to give evidence. The police need to explain why prosecutions could not be based on –
– evidence from other witnesses
– the posts by the young men on social media. Some of these were deleted. Did the police engage a forensic examiner to recover them
– the evidence of the girls who complained and completed interviews
In one instance, three witnesses supported the young woman’s account. Two of those witnesses were collaborators of the young men.
Witnesses said that the young woman asked the young man to stop. He did not. When he was told by one of the other young men to stop and still did not, the two other young men physically intervened to stop the behaviour.
Why could no charges be laid?
- Why has no Police Commissioner ever offered his resignation over the widespread and repeated shortcomings in the way police handle sexual assault complaints?
Resignation is the way in our system that people take responsibility for problems and underscore that they think an issue is important. We can all think of far less serious cases in which resignations have been offered.
Finally and once and for all, fixing the way police handle sexual assault allegations needs to be made key priority for the Police Commissioner and failure to do this should be an employment performance issue.