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No rules of evidence for sexual violence allegations

Filed under: Domestic Violence,Law & Courts — Vman @ 10:43 am Fri 23rd October 2009

A proposal from the two-year taskforce for action on sexual violence, issued yesterday, would reverse the usual rules of evidence for sex cases.

Note that many of the proposals are things like redefining the definition of consent so that the male is presumed guilty unless he can prove positive that an explict “yes” was given and she meant it. For example they refer to the NSW example. In NSW if she had been drinking at the time and she changes her mind after the event then it is rape.

22 Responses to “No rules of evidence for sexual violence allegations”

  1. Louise Nichollis is quoted yesterday as saying “The war is won”. A fairly powerful statement about her views on this change.

  2. rc says:

    Not once was the term ‘false rape accusation’ mentioned. Absolutely no consideration was given to the rights of the accused – indeed, the whole write-up reads like nothing more than a stacked court enabled to rail-road any man without the least consideration that he may well be innocent. This at a time when false rape accusations are reaching epidemic proportions, and the false reporting of rape is believed to be several orders of magnitude higher than false reporting of any other crime.

    What’s particularly striking is the recommendation that a man’s silence is to be construed as incriminating. It almost appears that the group making these recommendations has already anticipated that most men will clam up when confronted with such a kangaroo court, and has pre-written legislation so that this natural reaction will be used to secure his conviction all the sooner.

    Here’s the kicker:

    “The taskforce proposals for the justice system are based on research, published this month, showing only 13 per cent of all sexual violence cases reported to police result in convictions.”

    There are two ways of reading this.

    The first is that the justice system is letting rapists off the hook, and needs reform, which is how the task-force seems to be oriented.

    The second is that the rate of false rape allegations is sufficiently high to make higher conviction rates unconscionable. There is plenty to suggest this second view is the stronger, but strangely, the whole issue of false allegation is conveniently not mentioned. If it’s not being considered, then naturally, poor recommendations will result. I know of no reputable studies in New Zealand as to its prevalence, but the Kanin study done in the US in 1994 found a staggering 41% of allegations were unfounded, and that was a conservative figure – the only allegations he counted as false were those for which the accuser recanted. Other cases where the accuser withdrew the allegation but refused to say why were not counted as false.

    It would be reasonable to speculate that the number of false rape accusers is now even higher, given the almost automatic pardoning they receive, the financial incentives to lie, and the ever decreasing stigma associated with being a rape victim (if you prefer ‘rape survivor’, then you get the point).

    Kanin’s study can be found here.

    The potential for extortion should these proposals be adopted is immense, and the cost imposed on the rest of us for jailing innocent men is not something to be taken lightly. If task-forces are not taking the time to study and consider realities highly germane to their brief, then their recommendations are worthless. I hope whoever organizes these wastes of public money are held accountable, especially now when tax revenues are plummeting.

    It’s pleasing to note that of the 14 task-force members, only 4 endorse most of the proposals. Co-incidentally, on the task-force there were “four people from a non-government network of sexual violence services”. I’m guessing there’s a strong likelihood they are the same 4.

  3. Fearless Frank says:

    I wanna be one of the counsellors! Two years [guaranteed?] counselling work per ‘victim’, which when weighed up against all those women (most women) who are apparently sexually abused (including the 87% who apparnetly don’t report the alleged crimes because – well just because), has got to be a phenomenal employment initiative…

    Let’s think:

    The Ministry of Women’s Affairs yesterday released the findings of a two-year study analysing all adult sexual violation cases recorded by the police between July 2005 and December 2007.

    Research manager Denise Lievore said the study looked at why sexual violation cases did not continue through the different stages of the criminal process.

    The study found the overall conviction rate, based on 1955 recorded cases, was just 13 per cent.
    ” [reference]

    1955 cases was over abour 30 months (July 05 – December 2007), so let me assume 782 cases per year.

    If 782 is 13% convictions, then there are over 6,000 sexual offences reported.
    The same article reports “”Only about one in 10 sexual violation offences are even reported, so we are really only seeing the tip of the iceberg of sexual offending when we look at the conviction rate,” Lievore said.”,
    so the true figure must be closer to 60,000 offences in New Zealand each year.

    60,000 women (if we could only track them down) = 600,000 women over ten years, or 1.2 million women per generation (twenty years).
    Each victim – sorry – survivor – would then be eligible for two years counselling, at say forty weeks per year, at 1 hour per session, = 80 hours each.

    So these 1.2 million ‘survivors’ can need something like 96,250,000
    hours counselling to recover from their ordeal.

    At maybe $150 per hour, is something like $14 Billion worth of counselling services!!!!!!

    60,000 ‘survivors’ per annum at 80 hours counselling each, is 4,800,000 hours counselling required per annum.

    At 20 hours per week (gotta have back-office time, probably hour-for-hour of front-line counselling), and working for maybe 44 weeks of the year (allowing for annual leave, sick leave, public holidays etc), I can accomodate 880 hours counselling per year.

    4,800,000 hours to be provided, means fulltime employment for 5,468 counsellors.


  4. SicKofNZ says:

    Don’t have sex. Invest heavily in batteries. Recover your stolen wealth.

  5. Fearless Frank says:

    come to think of it, that’s 720Million worth of counselling per annum;
    a small drop in the ocean for the cause of dealing with those 60,000 or so sexual offenders!
    LOCK EM UP, I say! Every one of them! Throw away the key!

    It costs some thing like $55,000 to incarcertae one prisoner for a year. Rape can be 14 years, so it’ll cost up to $770,000 to keep one rapist in jail for 14 years;
    Or $42 Billion per year for the entire 60,000.
    Which equals $924,000,000,000 over twenty years.

    $924 BILLION, to incarcerate all those rapists;
    $14 BILLION to counsel all those vict-ivors;

    Has New Zealand got that much money?

    If 60,000 sexual offences are committed each year – 1.2 million over a generation,
    where are all these victimns and offenders?
    There is only about 600,000 men in a generation (about 30,000 born each year) and a similar number of women.

    But hang on, only about 30% of women are sexually abused (including sexual assault) – depending on which study you refer.
    By my count, that would be only 180,000 in a generation

    So that’s it! Each victim is abused (on average) 6 or 7 times!
    so we’re talking about all few men committing a huge number of repeat offences on only a portion of women!!
    Veritable predatory recidivist monsters!
    How could woman give birth to such men!

    Man, I could go on.

  6. rc says:

    What really interests me about this kind of break with reasoned law is its massive potential for abuse (and we all know the existing law is well enough abused as it is).

    Let’s say someone wanted rid of Peter Dunne as Minister, or John Key for that matter. All they need to do is hire an actress, get her to make an allegation and *bam* – he’s gone. History. She can’t be cross-examined. All she has to do is somehow find a moment alone with him that can be verified, then make the allegation some months later, so no physical evidence could be expected to remain.

    Instantly she gets paid by those who hired her, paid by ACC, freed from any negative publicity, freed from cross examination and in the very unlikely event that she should get caught, the automatic pardon. What’s not to like about this if you want all men removed from government? From anywhere? It’s win, win, win, win, win.

    What a nice, clean way of toppling government.

    By the way, does anyone think Bill Clinton would have survived the Monica Lewinsky thing if she had accused him of rape?

  7. Fearless Frank says:

    And for a serious allegtion:
    BANG! 80 hours @ $150 = $12,000 worth of state funded counselling;
    BANG! 14 years @ $55,000 per year = $770,000 worth of incarceration;

    POtential Cost to the innocent taxpayer: $787,000!

    Surely, because rape usually involves violence, we can boost the AllMenAreViolent industry, and require all sexual offenders to complete a Living Without Violece programme too?

    But wait! there’s more!
    Jury costs;
    legal aid defence;

    And don’t forget the proposed $50 levy on convicted criminals;

  8. Sympathiser says:

    Interesting. Here’s my two…or three…cents.

    You’re all looking at the issue from the point of view of the victim of a false complainant. That’s a legitimate view point. But have you considered the empowering potential of these recommendations for genuine victims of sexual abuse?

    The suggestions of the study mostly seem reasonable to me – given that the offender is entitled to full representation and to make his or her case in court – with the exception of the recommendation that an inference is drawn from silence. That is certainly not appropriate in any criminal case, and I doubt that the judiciary would stand for it. The rule of law must be observed in all cases,

    …as noted by Professor Elisabeth McDonald…who, incidentally, is a woman…

    A low conviction rape is not necessarily indicative of a high number of false claims. Given that the justice system has been geared towards practices that often antagonise the victim – cross-examination of the victim is a good example, and you can read one judge’s viewpoint here: – the Courts provide a ripe ground for defence lawyers and their clients to raise doubt over their guilt – particularly if the victim is too frightened or distressed to speak. (I say “victim” because it’s an issue much wider than women or rape – the same goes for murder and other violent offences, etc). In fact, taking this further, we can contrast the higher conviction rate for other violent offences with the low conviction rate for sexual offences and draw various conclusions for this:

    a) DNA is usually readily available in violent crimes (unlike sex abuse victims, who do not have to supply DNA, or may have washed the evidence off);
    b) logically speaking, a violent offence like aggravated robbery is likely to take place in public, or at the very least is easily discovered (often you wouldn’t have a clue that someone has been sexually abused); and
    c) perhaps most important of all, and related to b), is that most sexual abuse victims are likely to be abused by someone they know (see for an example). Moreover, let’s not forget that the majority of sexual abuse is not even ever reported.

    RC – what evidence do you have for saying “epidemic proportions”? With respect, this is as fear-mongering as saying that rape has reached “epidemic proportions” – which it hasn’t. Your reference to the 1994 US report is evidence, yes, but I might tentatively point out that fresher research may yield more accurate results.

    In fact, in one 2009 study referred to above, only 8% of the cases had been falsely accused. That’s still unacceptably high – but hardly an epidemic.

    What are the “financial incentives” to lie? Going through a lengthy court battle – where you may or may not get legal aid – seems a lot of trouble to go through just to try and get compensation you may or may not be awarded for something you know you didn’t experience. People who do this are, in my view, mentally ill – but such people exist across all facets of the justice system, not exclusively in “women’s issues” like sexual abuse (and they should be held to account and given help, of course).

    I’m largely using evidence from one or two studies here – and it may come down to whether you believe stats from Rape Crisis or the Ministry of Women’s Affairs or not – so I recognise it’s not gospel – but I have a strong hunch that you’d find such data mirrored in other studies.

    My final note is that I fully support counselling for sexual abuse victims. Wouldn’t you want the same if you were raped or abused? Who knows, you may find yourself in such a situation.

  9. rc says:

    What’s particularly disturbing about your argument is this:
    “But have you considered the empowering potential of these recommendations for genuine victims of sexual abuse?”

    Why is the empowering potential of a certain victim of crime so much more important than that for any other victim of crime? Why is the victim of sexual attack so much more worthy of special attention that established principles of law are being effectively suspended?

    I have difficulty believing that a rape victim has a greater right to special legislation than an assault victim who has suffered severe brain injury, or someone who has lost a limb due to criminal negligence (or worse, the deliberate desire to inflict harm). But in these latter cases, existing legislation – as fault ridden as it can so easily be pointed out to be – is considered adequate for the purpose. The same hurdles to accessing justice via the courts exist for every crime you can think of. Some of these hurdles very probably are hubris from the past, or may exist due to the over-straining of the legal system, but no-one suggests abandonment of presumption of innocence, inference of guilt from silence, immunity from cross-examination or introduction of the defendant’s history at trial.

    If we want to “empower victims”, then we do it for everyone, not just victims of sexual assault.

    Court-rooms do not serve justice when the rights of the defendant are considered of lesser value than the rights of the plaintiff. A court of justice’s purpose is to establish truth, not increase conviction rates by hook or by crook because certain individuals are unhappy with a statistic that in itself tells us very little.

    The fact that reliable statistics on the incidence of false allegations are not regularly published by disinterested parties further compromises the intent of those who are promoting these sorts of changes. I quote Kanin because he is considered by most to be a reputable source. The US Air Force released a more recent study that showed an even higher false reporting figure than Kanin’s 41%. Spokespeople for police have unofficially stated that the false rape allegation figure in their precincts is above 50%.

    For a daily running report on the incidence of false rape, I refer you to The False Rape Society. There you will see cases from public sources (it is updated with new stories throughout the day) and some are so peculiar and of public interest that one would expect to see them on our own national news, though we never do. Indeed, whenever any story starts out as a rape it’s all over our news, but as soon as it’s revealed that it may not be (common with the rugby players), everything goes silent. We just don’t hear what really happened. Even the common reasons for women making false accusations are not well-known.

    My point in referring to this web-site is that for those affected by false rape accusations, the reality of it is just as personal and as overwhelming as geunine rape is to those who are victims of it. The primary difference between the two is that 13% of alleged rapists get convicted of a serious crime, whereas 0% of false rape accusers get similar convictions – even though their deeds are every bit as ruinous for their victims.

  10. Skeptik says:

    you hit the nail squarely on the head.
    Well said.

  11. Hans Laven says:

    That such law changes are even proposed removes all doubt that we are subjected to a vicious gender war. A type of offending that is thought to be committed mainly by men is singled out for ongoing removal of protections against false conviction. The changes have little relevance to improving the accuracy of judgements but are simply designed to increase the likelihood of conviction on the same evidence. Any increase this brings about in the hit rate of convicting truly guilty defendants will be matched by a similar proportion increase in the rate of convicting truly innocent defendants (to consider this further, see Signal Detection Theory). The proposed changes are accompanied by conspicuous denial through silence concerning their inherent injustice. Those additional men falsely convicted and imprisoned for long periods are seen as disposable, much less important than the aim of providing women with more power to send men to prison without any need to provide evidence to support their allegations and with relatively minimal testing of those allegations.

    If the aim had been improved justice through more accurate decisions, then quite different initiatives would have been proposed. For example, a public education campaign to encourage those experiencing sexual assaults to avoid showering before going to police would bring about an increase in conviction rate with much less increase in wrongful convictions. Or, given that most jury members are likely to be able to read now (compared with the situation when the jury system was first established), we could provide juries with copies of written evidence to assist them in making better decisions.

    I commend “rc”’s reply #6 and especially the question of why sexual assaults should be seen as more deserving of special treatment than other crimes that may well cause equal or greater harm. The answer must mainly lie in the gender war. Sectarian movements throughout the history of civilization have similarly achieved law changes that reduce the civil rights of unfavoured sections of society making it easier to hammer them with legal shackles and punishments.

    Remember also that the latest proposed changes come on top of many previous changes all of which serve to reduce protection against false conviction. For example, the proposed ban on asking complainants about their own sexual history with the accused is an extension of the previous ban on asking complainants about their general history of sexual behaviour, and a further erosion of the information available to a jury about the context around the complaint.

    At present, case law is being created in NZ concerning recent law (sections 103 — 105 of the Evidence Act 2006) allowing evidence, including evidence in chief, to be given behind screens, from another room via closed circuit tv, or simply by playing a previously recorded “evidential video interview”. Although that legislation is not limited to sexual crime, that appears to be its main raison d’etre and where it will be mainly applied. For one thing, only sexual allegations routinely lead to evidential video interviews where the complainant can be encouraged and guided in verbalizing claims in a relatively comfortable environment with only the interviewer and perhaps a personal friend or other support person in the room and without the prospect of cross examination. These particular evidential law changes essentially remove the right of an accused to face their accuser. Although that will make it easier for a traumatized complainant to tell the truth convincingly, it also, obviously, will make it easier for a complainant to maintain false accusations more anonymously and without having to face the person being lied about. While such provisions may be thought reasonable where disabling traumatic reaction is likely, for example if a complainant has to face a group of gang members who subjected him or her to torture and near murder, the evidential law changes are in no way limited to such circumstances. Given the many reasons the Court can use to allow departures from normal ways of giving evidence, departures are likely to become available almost on demand.

    The gender war is being progressed against men with little resistance from them. The Key government, already responsible for police-issued protection orders and ignoring the referendum on smacking, appears destined to become yet another administration that history will see as eroding justice and wrecking social cohesion through its gullibility to feminist propaganda.

  12. gwallan says:

    Ah, you were going so well.

    But then you wrote this…
    …the offender is entitled to full representation and to make his or her case in court

    Forgive me if the rest became tainted with the notion of guilty until proven innocent.

  13. Skeptik says:

    Cogent and errudite as we’ve come to expect.
    Key certainly appears to be pandering to the female vote as do many other MPs, judges etc. They are cynical enough to know that because women outlive men by approximately 2 full voting cycles in NZ that they risk loosing the female vote if they don’t bend to the will of feminist advocates.
    I think our chances of getting justice unfortunately rest upon a mass of NZ women understanding the isses of discrimination men there face. Sadly I have to say that having seen NZ politicians in action over the last three decades coupled with most nz women’s low level of awareness of men’s issues and their propensity to treat men as expendable success objects I have little faith that things will even out so that men get a fair shake.
    Some will dismiss this as defeatist, however seeing the errosion of men’s and boys rights and the glacial pace of getting any support from women i don’t see the situation changing any time soon.
    I admire your patience in trying to chip away at the feminist inspired attitudes which hold men back terribly there. I gave up long ago trying to reason with the powers that be and just walked away shaking my head. Only today I spoke to some asian gentlemen who were interested in NZ as a possible destination to travel and perhaps reside. Good hardworking, intelligent, successful business men and staunch family oriented men, go getting types who could benefit NZ society tremendously.
    I saw it as my mission to warn them in no uncertain terms about the horrible fate which befalls many men in nz.
    They were rightly shocked for example to learn that a man can be convicted and villified in this day and age without corroborative evidence on the mere heresay of an agrieved woman.
    They don’t fancy being the next victim of a false allegation of domestic and/or sexual violence, and see the ability of women in nz to crush men who don’t even get to face thier accusers in District Courts, and in the family court, to not be judged by a panel of peers nor even have the proceedings, but only the demonising verdict recorded.
    They in turn will no doubt spread the word about nz and echo my sadness at not being able to live in nz with due safety and civil rights.
    So I suppose in a way I’m chipping away too, but from another angle. Like I said though I’m not holding my breath on change happening any time soon. It’s not just a brain drain of good honest generative men leaving nz, there are now a growing number who won’t replace them by emigrating or even visiting.

  14. Paul says:

    I think Bill Clinton actually said ‘Sack my cook’

  15. rc says:

    Interesting point made here concerning the ‘conviction rate’ for rape in Britain.

    It’s claimed to be 10%, and that’s the commonly broadcast figure. But that’s not the conviction rate at all, as it’s commonly understood for every other crime. ‘Conviction rate’ usually means all those cases that are brought to trial, and convicted at trial. In Britain, the conviction rate for rape is actually about 50%.

    The figure of 10% that’s bandied about by the BBC, amongst others, is actuallt the attrition rate. That’s the percentage of cases that result in a conviction, as a percentage of all rape complaints made.

    The reason for the big difference between conviction rate and attrition rate for rape is because of accusations withdrawn without reason given, recantations (admissions of false allegation), discovery by police of false accusation and cases dropped because they are deemed unlikely to persuade a jury.

    Next time you here ‘only 15% of rapists are convicted in New Zealand’, bear this in mind.

  16. Skeptik says:

    Here’s another nasty bit of NZ feminist/chivalric judical activism.
    Notice the sentence the woman got and ask yourself what sentence a man who was a father of four would get by comparison.

  17. Scrap_The_CSA says:

    Yes Skeptik,

    This is wrong – the sentencing is a wet bus ticket approach by the judge.

    I love CYPF’s comments A report prepared by Child, Youth and Family indicated the woman was not seen as a risk to either her own children or any other children.

    This woman abused a 15 year old boy and the state agency does not see her as a danger to children?

    THe judge is quoted There were some troubling aspects about the woman’s behaviour in that she was controlling and seemed to have an attraction to young teenage boys, he said.

    Despite this he lets four vunerable children remain in her care and gives her a piddling 10Months home detention.

    At least the crown prosecutor tired.In making submissions, Crown prosecutor Tim Gresson said a prison term with a starting point of 3 1/2years was appropriate. As a matter of principle there was no difference between sentencing a male or female offender, he said.

    Would you want your young son exposed to this child abuser? But hey how would you know, her name is supressed.

    A big sigh


  18. rc says:

    Pussy Passes would make excellent protest opportunities.

    Every woman up for sentence is likely to benefit from it, so a handful of protesters with placards secretly stored in their cars could wait outside the court, and as soon as the sentence is handed down go into action. There would be ample time beforehand to gather figures for prior convictions for men for similar crimes, and have the full facts available at the moment. Media generally cover sentencing, so media presence is guaranteed – having a media release handy would be a good idea. Also wise to choose a courtroom with high foot-traffic outside. Judges would be taken completely by surprise. They would find it very uncomfortable to have their obvious and recorded sexism on public display, and impossible to counter without making things worse for themselves.

    Getting the words ‘Pussy Pass’ out into the public consciousness so that everyone knows what it means is the first and vital step.

  19. Skeptik says:

    rc and Scrap,
    Thanks for fleshing out my intial very brief commentary with valid points.

  20. MurrayBacon says:

    Managing evidence in sexual offence trials is difficult. In USA there has been a very different standard set, between military trials and civilian trials. This has allowed the problems both ways to be easily seen – if anyone cares to look?

    Alleged military sex assault victims seek to block use of counselling records

  21. DJ Ward says:

    There is so many things wrong in this case that it has left me with that WTF feeling.

    Firstly things just don’t add up. She has a protection order against him yet she says ‘because he was cheating on her’. What? A protection order means piss of and leave me alone, yet she in her own mind still demands loyalty from him. That’s power and control behavior! Then there is ‘she wanted to hurt Issac Kerehoma’ which is a good self-admission that actually a protection order should be made against her, to protect him.

    There is this ‘left Judge David Smith with no choice but to dismiss those charges’. So if she did not admit she lied, making it all up, that they would have carried on prosecuting him resulting in a conviction. No choice sounds like they would have enjoyed prosecuting him if they could.

    She was beaten up in a pub, but the pub did not ring the cops? Did they go get the bar security video?
    ‘she was indecently assaulted, and that Stevens took some of her jewellery when she saw him in McDonald’s.’ So surely McDonalds staff would have noticed and rang the cops? Did they go get the McDonalds security video?
    I’m finding it difficult to believe that the police did any investigations into the case at all, blindingly just believing her, with the intent of gaining a conviction on serous charges just on her statement claiming offending, and completely absent of any evidence. Is this normal behavior for the police? Worse, is it normal for the legal system to even allow such cases near a courtroom? Well at least some lawyers were making money.

    ‘She took photos of her face that night, showing it looking swollen.’ Falsifying evidence?

    ‘Stevens had already spent about five months on remand.’ Her actions caused him real harm!
    Protection order breach? Sounds like she was chasing him around? Was it unavoidable due to her actions?
    Then there is another question. If she is willing to commit perjury, make false statements to the police, is the evidence used to create the original protection order ‘safe’ evidence?
    Where’s the defamation case?

    Interesting if the police do attempt to hold her to account, it’s clear from the judge’s comment ‘warn the woman she could be charged with perjury’ that he has no intent to. Consider this. He was prosecuted and convicted by the judge ‘on the spot’. She walks free? Yet they have more evidence against her, than the evidence against him that led to his arrest, and resulting in 5 months waiting for our incompetent legal system to process his case.
    Sadly she probably won’t be charged, because he is a bad man and probably deserved it. Even if she is prosecuted I will take a guess that his extra 1 month in prison that he served for committing no crime will be larger than the sentence that she will get.

    Like I said in the beginning, WTF.

  22. Man X Norton says:

    Yep DJ Ward, WTF. Your analysis is excellent.

    If she is willing to commit perjury, make false statements to the police, is the evidence used to create the original protection order ‘safe’ evidence?

    Protection orders are hardly ever based on safe evidence. They are almost always based on no evidence apart from allegations by the applicant. No actual allegation is even necessary because protection orders are made on the basis purely of a woman’s claim to feel frightened of the respondent.

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