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Wed 6th July 2005

Dangers of historic rape convictions

Filed under: General — JohnPotter @ 5:10 pm

Excerpts from RadioNZ Morning Report Wed 6th July 7.08 am

The families of four men convicted of rape wept at the High Court in Wellington yesterday as the verdicts were read out.

The rapes took place 16 years ago, and apart from the victim’s testimony there was no supporting or forensic evidence that the rapes took place.

Carolyn Day of the Auckland Sexual Abuse Help Foundation says this case may encourage women who have chosen not to bring forward rape complaints to re-consider. “I think women that may have buried that experience, or partly forgotten about it can be re-connected with that, and have a desire to come forward and do something about it.”

So is it possible to have a fair trial when events which are contended took place so long ago? To discuss this we are joined by Felicity Goodyear-Smith, an expert on sexual assault cases from Auckland University, and also from Auckland University Scott Optican, a senior lecturer in Criminal Law.

Felicity Goodyear-Smith firstly: do you think we can rely on the safety of such convictions?

“I think that there are dangers in taking very historical cases, because of the extreme difficulty presented in defending allegations that relate to the distant past. There are other countries that have what is called a Statute of Limitations, where you have a limited period of time to press charges; for instance most States of the United States have a Statute of Limitations generally from one to five years, and after that you can’t press charges.”

Would you support a similar Statute of Limitations here?

“Yes I would. In 1995 we removed the requirement of judges to caution juries about the dangers of conviction in the absence of corroboration. That means when you’ve only got one person’s story against another person’s story, judges no longer have to warn that that’s a dangerous situation to convict. I would support a re-enactment of that rule about corroboration, and I would also support a Statute of Limitations after which criminal charges can’t be taken.”

Scott Optican do you share those views?

“No I don’t. In terms of corroboration, in many sexual cases it is just the complainant’s word against the defendant’s, so a corroboration requirement would make it unnecessarily difficult to get a conviction.

Why should the time gap make much of a difference?”

Good point – Dr Goodyear-Smith?

“I agree that drawing a line in the sand can be a bit artificial, but the nature of memory is such that it does change over time. What we remember is our last re-collection of what happened. The longer the time, the more we may have thought about something, the more we may have talked about it, shared it with others, written it down or particularly talked to a counsellor about it,the more likely it is that it will change.

There are two situations really: a situation where an allegation is totally true, and a situation where an allegation is not true – there is no way to tell the difference. When it is not true, it may be that the person making the allegation is lying, but it can equally be true that the person making the allegation now sincerely and truly believes their current memory of what happened, even if that isn’t what happened.

That’s the danger of convicting on the basis of one person’s recollection of events against another person’s recollection of events. That’s the danger of convicting without any corroboration at all. When you have a long time-frame that just accentuates the problem.”

Scott Optican: “The thing is, many many of the studies about the way sexual assault complainants react make very clear that it is not actually all that common. or all that normal for sexual assault complainants to report cases immediately.

Felicity Goodyear-Smith the ideal would be wouldn’t it that people know such things are wrong and feel comfortable in coming forward?

“A lot of people do make allegations at the time. It’s not true that the nature of sexual abuse means that you are automatically going to put it off and not make the allegations. I’ve worked as a Police doctor for many years and many, many women I saw with horrific rapes actually made allegations at the time.

Certainly some people may delay and put off making an allegation, but the problem is there is [then] absolutely no way of telling whether the allegation is true or false. That’s a dangerous situation wheln you have a justice system that is designed to [consider you] innocent until proven guilty beyond reasonable doubt.”

Listen to Streaming Audio of this interview here

25 Responses to “Dangers of historic rape convictions”

  1. Moose says:

    After 16 years maybe embarrassment of what she agreed to do finally got to her. As I recall, she agreed to – ‘meet’ those 4 men. And there were twice as many wimmin on the jury as there were men. And the law now is totally biased towards wimmin/against men. 16 years ??? Why now ? I think it’s obvious. She knew she couldn’t loose.

  2. Sparx says:

    Listening and watching from outside there seems to be a lack of “beyond reasonable doubt” and, as Moose notes, how the hell did the jury end up with twice as many wimmin as men?

    Scratch another run on the Anti-Clark’s femmi-nazi score card…..

  3. Stephen says:

    This demonising of four NZ men without
    ANY CORRORATING EVIDENCE WHATSOEVER illustrates perfectly why as a man I am no longer safe living in NZ.

    This psychological terrorism also shows me why the NZ male brain drain to other parts will continue (see recent NZ Herald article on increasing numbers of NZ males leaving the country).

    Such ‘justice’ is the kind of thing I’d expect in Zimabwe or 1939 Germany.

    Shocking, mortifying, frightening news.

    The War against Men continues.

    My prayers go out to all the good men of NZ and thier supporters.

  4. tonyf says:

    Hi Stephen,
    could you elaborate more on the NZ Herald article you refer to?

    Thanks

    T

  5. Stephen says:

    A recent Herald article spoke of an Auckland University Social Sciences researcher looking into why there was such a dramatic drop in the number of men vis a vis women in Auckland. No reasons were offered.
    I surmise that in a terribly misandric PC NZ many NZ guys are buggering off to pastures greener. To places where they don’t pay huge taxes to support ‘victim’ feminist bludgers and the ‘abuse’ gravytrain, whilst being treated like shit in many ways for thier trouble.

  6. Ethos says:

    Stephen and Tony,

    The article was published on MENZ. Click Where have all the real men gone? to peruse it.

    Hope this helps

  7. Bob Anderson says:

    1939 Germany? Have you been on another planet since the holacoust? You know – HITLER? Maybe you should join the NZ male (I would say brain but it doesn’t sound like you have one) drain and move to Zimbabwe.

  8. Stephen says:

    Whoa Bob,
    Get a grip mate.
    The only point I’m making comparing 1939 Germany to present day NZ is that in both cases folks got incriminated WITHOUT CORROBORATING EVIDENCE.

    Did I mention haulocaust? Yeah Right.

    Incidentally the haulocaust didn’t occur until well after 1939 either!

    If you’d bothered to ask instead of popping off at me I’d have explained. Instead you stoop even lower to insults.
    Oh dear. Hoist in your own petard.

    And you have the audacity to say I’m the one being brainless here. LOL!
    Have a good day brother.

  9. Rex Howie says:

    Be interesting to see the outcome of the historic rape charges levelled against the three policemen in Rotorua,probably the same standard of evidence as in the Tauranga case.Also page 3 of the Herald today questions if the kiwi big OE is the reason for the latest gender imbalance in NZ.What a joke,they try every reason under the sun to explain this except the truth.This country is patently unfriendly to its menfolk,and the men are reacting by leaving,why would they want to stay in a place where they are marginalised and mistreated,but more importantly what will be the outcome of this.

  10. tonyf says:

    Hello Rex,
    yeah, I read the Herald today…very sad. All the excuses, none of the truth. I don’t expect anything else from the Herald.

  11. Moose says:

    To jump on the current bandwagon, and get my 2c in – I also had a quiet chuckle to myself at the reasons they gave for the current ( and probably growing ) gender imbalance. Surley some of the ladies watching could see the real reasons.

  12. Tracey says:

    I think it is a failure of our courts and law not to insist on other forensic evidence in these historical rape cases and rely heavily on the testimony of the alleged victim in the case. As a woman I would like to see a statute of limitations placed on rape cases and reading the statues from the different states in the USA there are some great guidelines from which NZ can start from/consider.

  13. Stephen says:

    Hi Tracy,
    Reading your posting above I feel very disturbed. You say that you “think it a failure of our courts and law not to insist on other forensic evidence in these historic rape cases”.

    I’m afraid your statement as it stands appears to gloss over a very perplexing issue for NZ men now accused of rape. For it isn’t a case now as you say of other forensic evidence being needed to convict some poor sod of rape. According to judicial precedent that has now unfortunately been set THERE NEEDN’T BE ANY FORENSIC EVIDENCE WHATSOEVER!!
    My God. Now simply the word of a woman appears to be enough. Just like simply the word of a woman can get a man/men served protection order/s, can get a man investigated for supposedly abusing his children, can get a man evicted from his own home.
    I fully expect savvy men in NZ to be scared shitless of the power the women around them have to wreck thier lives.
    I ask you and other NZ women to consider if you’d feel any differently if you also could be convicted of something as horrendous as rape on the mere say so of some bloke saying it happened years ago? I seriously doubt it.
    And as I’ve said repeatedly in other threads the prospect of repatriating is too scary for me to even begin giving serious consideration.
    And we wonder why blokes a fleeing NZ for safer havens? LOL!

  14. Moose says:

    I find it odd that forensic evidence can even be reliable after 16 years – in a rape case. That coupled with (sometimes distorted and drunken) memories being warped and changed over time can be even considered with any seriousness in a court. It seems it comes down to heresay evidence, or ‘his word against hers’ and it seemes that now ‘his’ word is by default, a lie, and ‘hers’ the absolute truth ine the courts. And yes Stephen, I am scared shitless at the fact that some random woman who I don’t know could have me dragged before the courts, deemed guilty before I even got there, and most likely put in prison. If not that, my name is mud by then anyway. Also, has anybody noticed that the current fashion is to accuse men of rape which supposedly happened decades ago ? Is there some loophole that has been dicovered vengeful women ?

  15. JohnP says:

    If the forensic evidence is able to be analysed for DNA it can be very reliable, even if decades have past.

    Of course this often works in favour of the wrongly accused and convicted, like in the case of David Dougherty, whos conviction for rape was overturned when DNA testing proved that the semen on the girl’s underpants was not his.

    If women who are raped go immediately to a properly trained doctor there is a high likely hood of reliable forensic evidence being collected.

    If, on the other hand they wait for 20 years…

  16. Moose says:

    Sorry for being ingnorant in this matter, but that’s what I meant : Either she would A) have had to keep her underpants for 16 years unwashed etc, or B) somehow kept a sample of the semen somewhere ? If she took either option A or B, wouldn’t that be more effort to wait that length of time, ensuring the undies/sample were well preserved etc rather than go to a GP or the police straight after the alleged event took place ? Please help me I’m having trouble with this.

  17. kel says:

    i cant beleive the cruelty of you people!
    this is exactly why many women (yes WOMEN, not WIMMIN!)do not report rape immediately! has it ever occoured to you that the victim may have spent the last 16 years trying to hide the truth of what happened to her, untill it finally became too much to conceal? i commend any victim of sexual assault for the bravery of coming into the open and letting her abuser(s) take responsibility for the pain and suffering they have caused, no matter how long after the event. these women should be admired for their strength, not slandered and verbally bashed.
    rape happens,and will happen again,what if it’s your daughter next time?

  18. Stephen says:

    Kel,
    I’m afraid your posting is no substitute for sound reasoning.
    Let’s get a few things straight.
    First off, if you look properly at this thread you’ll see NOBODY is discouraging women from reporting rape historical or recent. Nor slandering and verbally bashing them either as you state.
    We simply deplore (and rightly fear) the fact that now in NZ a woman can make a mere allegation against men of rape and destroy their lives WITH NO CORROBORATING EVIDENCE WHATSOEVER!
    To label our horror and protesting against such an obvious injustice ‘cruel’ only adds insult to injury.
    I doubt that trying to guilt trip us by saying ‘what if it’s your daughter next time?’ makes any sense whatsoever either.
    You should more usefully ask ‘WHAT IF IT”S YOUR SON WHO’S CONVICTED WITHOUT CORROBORATING EVIDENCE OF RAPE?’

  19. JohnP says:

    Kel
    As far as I know, no men associated with this site think it is OK for women to be raped, or for offenders to go unpunished.

    However, if you put the gender politics to one side for a minute and consider the facts, the situation is a little different than what you portray.

    For a start, you have to remember the majority of rape accusations are false (60 – 80 % according to police).

    There are a number of women who are “serial accusers”; they repeatedly use false claims of sexual abuse as a weapon to hurt men, knowing they are unlikely to be called to account.

    To compound the problem, if a man is criminally charged as a result, the jury is never allowed to hear that the complainant has a long history of making false accusations. They will also not be warned that a conviction in the absense of evidence is highly dangerous.

    As a result, the whole system of justice is undermined, and the basis of our society is severely damaged. When ten law professors sign a petition calling for a Commission of Inquiry into the Peter Ellis frame-up and the way the sex-abuse industry opperates, you better believe something is badly wrong.

  20. Cathy Hales says:

    I sat through the trial every day and could not see how the Jury could have possibly convicted. There was so much doubt.
    It is less painful to blame someone else than to admit ones own personal failings.
    The Jury disbelieved the evidence of the defendants, when one of the accused gave evidence or one of the four defence council was addressing the court or a witness -the Jury were gigling to themselves passing notes to each other and at times sleeping.
    Without corroborating evidence oof rape this trial was deemed to fail from the onset.
    In this case Justice was not seen to be done.

  21. Shona says:

    oh dear, I was doing some research on historical rape and came across this. I was absolutely horrified to read that 60-80% of rape complaints are considered to be false by the police. I am a 42 year old woman who was raped at the age of 15. Charges were laid at the time(section 128 and 129 of the Crimes Act 1961 – rape and attempted rape). For some reason, the mongrel who raped me walked free. He wasnt even had up for carnal knowledge. He was judged not guilty which left me living for the past 27 years with a guilty verdict hanging over me from the community that I live in. I have lived through hell for the past 27 years, unable to form proper relationships and being branded a liar. Where is the justice in this? I have recently tried to obtain proper justice, but I have nowhere to turn, because the justice system of 1979 decided that I had no recourse because of him being judged not guilty. I cant even have the satisfaction of calling the mongrel a rapist, because the justice system said he wasnt. Because of my own experiences, I really have difficulty in believing these figures of “false complaints”. To me, some of these false complaints may just be rapes that cant be proved, and the woman involved has to live all their life with the consequences. Some justice!!

  22. Moose says:

    Shona,

    It sickens me to hear of this act of horror which happened to you as a young wee lass.

    I myself have seen the emotional, and lifetime effects of rape for a Woman (My sister) So I sympathise with you for that, and it is a tragedy that justice could not be served as it should have done.

    I guess that when your rape occured, the Law was biased towards men, but since then a lot of effort has gone into resolving that issue.

    And so the pendulum swung. And now we are at the point where I believe the law is now biased against Men.

    So, In 50 years or so (excuse the metaphor) if the pendulum swings equally, we may see Media hype, and rediculous laws against women, and Men making false accusations against Women for similar reasons Women make false accusations against Men today – because they know the law is biased, and so they take advantage of the opportunity, for whatever reasons – vengeance, custody – whatever.

    And so the truth is never heard, and true justice is never served.

    I believe the law will never be purely just, as long as money controls the world.

    But know this – false rape allegations are a common thing now. Especially because ‘victims’ are awarded a princely sum, there is every incentive for a female to ‘give it a go’.

    I hope you see that these females who make these false allegations are ruining it for those of you who have real allegations to make.

  23. Rosie says:

    I believe the four men involved in the Historic Rape case are having their Appeal heard in Februray I wish them every Success. In my mind the trial was a Miscarrige of Justice.

  24. Tracie says:

    Ihope you are right Rosie! my brother is one of the men seeking an appeal on the sentence imposed on them as a result of what I can only describe as a travesty of justice.When one refers to corroborating evidence, not only was there an entire absence of it, but sadly several major alleged”facts” were absolutley disproved, by the defense.To what avail? the judge instructed the jury to choose whose story they believed, he also had the poor taste to remind them of all the publicity that people were exposed to in several very high profile cases of historical rape and just to disregard these matters.( a nice reminder!)16 years and in all that time the “victim” never told a soul…no one, never even alluded to it to anyone. Now as a woman myself i freely admit that I do not discuss everything with friends, but it does seem rather questionable that the one time that one would mention such a huge issue is after high profile publicity,. Like cathy I too sat through the court case and never ever have I felt so disempowered by a process. These men had no chance at justice…none.The entire case was a sham. I now fully support the statute of limitations, at least that way we would all have a chance to remember what may be a significant piece of memory that could prevent an 8 year sentence like my brother got. I ask you… can you remember what you were wearing 16 years ago, in january on a friday? this might one day becoming the defining difference in who will believe you or your accuser!
    Cathy was right also, the jury were disrepectful and lacking in attention, not once did the judge direct them to the task at hand.It was over before it began. a sad indictment on what our society has become.

  25. Lisa says:

    I wonder if Tracie now believes that lightning can strike twice!!!Me thinks not. Interesting as the suppressed details have been made available to see a pattern emerging. As the saying goes “be sure your sins will find you out” and that in my opinion has no time constraints attached. Working with people who are dying gives me another perspective on such matters and that is that as people are dying it is always about relationships. Hardly ever about wishing for better jobs or flasher cars or bigger houses…always about relationships. I take some solace in this as people who have perhaps ‘got away’ with crimes thru the criminal justice system do not really get away with it at all. They KNOW absolutely what they have (or haven’t) done and I’m sure the torment of such matters revisits them if not during the course of their life times, certainly on their death bed. Not justice for their victims who have more than likely revisited and been traumatised by the event(s), but some comfort none the less.

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