Sexual Violence Legislation Bill Introduced 11 November 2019

The Justice Minister has introduced the Sexual Violence Legislation Bill. It amends the Evidence Act 2006, Victims’ Rights Act 2002, and Criminal Procedure Act 2011 in a bid to reduce the re-traumatisation victims of sexual violence may experience when they attend court and give evidence (as stated in the explanatory note to the bill).

In 2015 the Law Commission released its report Justice Response to Victims of Sexual Violence (NZLC R136, 2015) which identified failures in how the justice system deals with the needs of  Complainants. the foreword to the report stated that  a significant number of

complainants are “opting out” of the very system that is supposed to recognise their rights and support their needs. They are doing so largely because they perceive the formal criminal justice system to be alienating, traumatising, and unresponsive to their legitimate concerns."

That report made three recommendations for change:

1. a specialist sexual violence court, however constituted, is required, potentially as a division of the District Court;
2. an alternative system outside the present criminal justice system is also required, potentially including the ability for a victim meet with a perpetrator to tell their story and seek redress (for example reparation, an apology, or an undertaking to complete a treatment programme) or they may wish to reconcile with or be validated by family, whānau, or their community. The process would be flexible; and
3. better support systems are required for victims.

Although the Sexual Violence Legislation Bill explanatory note identifies this report as background to its reforms, it concentrates on procedural and evidential amendments. In particular, it aims to:

• clarify and extend restrictions on the admissibility of evidence about a complainant’s sexual experience and disposition, to protect complainants from unduly invasive questioning. These amendments also help to dispel the idea that consent, or reasonable belief in consent, can be derived from a complainant having thought about or consented to similar sexual activity in a different context;
• apply the criminal case restrictions on evidence of a complainant’s sexual reputation, experience, and disposition, to civil cases too – with a narrow exception to the complete bar on reputation evidence. Cases of a sexual nature carry similar dynamics irrespective of their jurisdiction, and the rationale of protecting complainants and ensuring legitimate reasoning applies equally in civil cases;
• require Judges to intervene in inappropriate questioning of witnesses, and include a witness’s vulnerability as one of the factors a Judge may consider in determining whether the questioning is unacceptable. This strengthens the basis on which Judges can control the nature and content of questioning;
• entitle sexual violence complainants and propensity witnesses to give their evidence in alternative ways. These amendments make it easier to shield witnesses from some of the stress of appearing in the witness box and may also improve the quality of their evidence, while still ensuring it can be heard and tested;

• make it clear that the entitlement to use alternative ways of giving evidence extends equally to pre-recorded cross-examination evidence, which is used very rarely under current law, and create a procedural framework with requirements and safeguards to ensure recording can happen effectively and fairly;

• require Judges to direct the jury on any myth or misconception relating to sexual violence that they consider relevant to the case, unless it has been adequately addressed in evidence already. Judicial directions addressing commonly-held myths and misconceptions about sexual violence and the way victims and perpetrators “normally” behave will help support the jury to discharge properly its role as the fact finder;

• allow the court to be cleared of the public when a sexual violence victim’s victim impact statement is presented and clarify that victim impact statements may be presented to the court in alternative ways. These amendments will empower victims to exercise their rights to convey the impact of the offending to the offender and court, which can be an important part of the healing process, without having to suffer through unnecessary distress.

The Regulatory Impact Statement for the legislation states that the Ministry of Justice:

“… does not consider the preferred options represent a real risk to defendants’ fair trial rights. We acknowledge that some stakeholders consider our analysis places greater weight on reducing trauma, at the expense of defendants’ fair trial rights. While reducing complainants’ trauma is the key objective and criterion for our analysis, maintaining fairness and justice includes protected minimum standards for defendants we have not traded off.”

The impact statement does note that in addition to Government costs, there may be some costs to defendants using privately funded lawyers, and those required to pay back legal aid grants. This may therefore raise access to justice considerations.

NZBA Criminal Committee members, Todd Simmonds (Deputy Chair) and Matthew Goodwin (co-ordinator – sexual violence reforms), would like to hear members' views of the reforms. Please send your comments to us.