Dangers of historic rape convictions
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.”