From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand
Elisabeth McDonald and Yvette Tinsley (eds)
Victoria University Press, $60.00,
It is a fair bet that many good readers have a shaky understanding of what unfolds for women who report sexual violence. If, like most, you have had no occasion to learn about the reality of the courtroom experience for sexual assault victims, you will find “Real Rape” a real eye-opener. This in-depth investigation into how to improve the New Zealand system of justice is grim indeed, but is not without a ray of optimism.
The prosecution in 2006 of three New Zealand Police officers for the gang rape of several young women shocked the nation and was the catalyst for a flurry of government activity, including the Law Commission funding that produced the research presented in this text. The abhorrence rested not just with the idea that a group of men charged with upholding and enforcing the law could conceivably be involved in such a reprehensibly violent abuse of power, but that the crimes had been covered up when they were first reported in the mid-1980s. But, lest we forget, this is but one example of everyday sexual violence, the vast majority of which never come to public attention. Sexual offences have the lowest rate of reporting of any crime, mostly because victims want to avoid the stigma and blame that comes with publicising it. Many never tell anyone or wait a long time before they do when the impacts begin to interfere with their lives. Although difficult to measure with precision, surveys of the population estimate that less than 10 per cent of sexual assaults in New Zealand are reported to police. Just 16 per cent of reported crimes result in conviction for a sex crime or related offence.
In light of this dismal record, the authors’ remit from the Law Commission was to consider options for reforming the current procedures for trial and pre-trial processes in sexual offences, including alternatives to the current adversarial criminal justice system, a radical idea whose time should have come long ago. In doing so, they duly reviewed the academic and government literature and consulted with victim support agencies, police, lawyers, judges and academics in this country and overseas. Material that has the potential to be very dry is presented in a format that is highly readable and organised in a way that allows readers to zero in on topics that interest them.
There is much here to inform and surprise the lay reader. Those with limited first-hand experience of the criminal justice system may find it unsettling to hear defence counsel, judges and prosecutors say they would not recommend the women they care for report a sexual offence to the police. One defence attorney is cited as saying: “Alas, I would never advise members of my family to report a case of rape.” It would be difficult to find a more damning indictment.
What is just as unsettling for the liberal-minded among us who consider the fight for gender equality to be so second wave is that little has changed substantially in our collective response to adult victims of sexual offences. Over 30 years ago, Martha Burt, an American researcher, coined the phrase “rape myths” to describe the prejudicial, stereotyped, false beliefs about rape victims, rapists, and the contexts in which these crimes occur that most of us carry around to some degree whether we admit to it or not. They are familiar: women ask for it by the way they dress or behave; they say no when they mean yes; and, they routinely lie about rape. If in your world these myths have long since been debunked, it is time to step into the courtroom, or at least into this corner of social science research.
Identifying these beliefs as myths marked an epiphany of sorts as our collective consciousness was raised to the injustice of blaming women for male sexual behaviour. An avalanche of research, public education, feminist lobbying, police training, and legal reform to correct these injustices began that continues to this day. When so much has changed for women, how these myths are allowed to continue is the big question. Feminists and other social reformers in the 1970s and 1980s were optimistic that public attitudes and the insensitive and degrading treatment of sexual assault victims could be changed through reform of legislation and evidentiary rules. Research gathered by the authors shows clearly this strategy on its own cannot be successful. Despite decades of law reform and attention to gender inequality, deeply felt beliefs about the victim’s complicity in sexual offences remain one of the greatest obstacles to providing just outcomes for victims. Quotations that describe the experience of women’s encounters with the police and courts today are depressingly similar to quotations from the early 1980s.
But the authors have not left us without hope. Recommendations to cure some of the current ills of the system are put forth: install specialist police, prosecutors and defence counsel; improve inter-agency co-operation and communication; strengthen oversight of prosecutorial decisions to drop cases; improve communication between prosecutors and victims; fast-track cases through court; try sexual assault cases by judge alone in an effort to control the “cognitive illusions” so rife among juries; rethink high penalties that may work against admission of guilt; increase options to traditional court process through referral to sexual violence treatment courts and restorative justice approaches; and, amend evidentiary rules.
Some of these reflect policies already in place: the monitoring decision to have independent experts randomly audit files to ensure equitable decisions and outcomes in sexual assault cases has been in place since 2008, but a report by the Auditor-General found no such scrutiny of files. And some, such as recommendations that prosecutors meet with the complainant before the trial, are an eye-popping revelation of how crass is the treatment of victims and how basic are some of the changes needed to inject a modicum of sensitivity. Yet the current situation is entirely consistent with prosecutorial guidelines to avoid showing personal interest in the victim or the case.
True to their remit, the authors have done an extensive job of investigating practices in other countries. The foray into investigating what is unique about the inquisitorial system in five European countries ‒ Austria, Germany, the Netherlands, Denmark and Sweden ‒ takes the discussion to a new place and opens the door to new possibilities, if in fact they are seriously debated and considered.
The inquisitorial or civil law system is fundamentally different and challenges our taken-for-granted understanding of how things work. For those raised on American-style courtroom dramas, it may be difficult to image a situation where an impartial judge uses wide-ranging investigative powers to gather evidence that is both incriminating and exculpating for the accused person, and where the evidence is tested without the cross-examination procedure in the adversarial process that victims of sexual violence find so distressing. The defendant is questioned by the judge just like any other witness, and all are able to give evidence more freely.
This system opens up possibilities for victim support and indeed victims are entitled to legal representation, a concept completely foreign to current practice in countries practising adversarial law like New Zealand, the United Kingdom, Australia and Canada. Here defence counsel and prosecutors are locked in an adversarial battle, presenting evidence within complex rules, and the judge is able to rule only on the evidence presented and may never get the full story. Although victims can be subject to detailed and embarrassing questioning under both regimes, perhaps not surprisingly, countries with the lowest conviction rates have adversarial systems. The authors’ recommendations to diversify the response to sexual assault and consider aspects of the civil law approach are intriguing to contemplate. The main conclusion of this work is that the challenges of prosecuting sexual violence are transnational. New Zealanders can take heart that, like other battles for gender equality, we are not unique but nor are the solutions simple and the small widely dispersed population of this country adds to the challenge.
It would be a great pity if readers pass “Real Rape” by as overly technical and academic. This text leaves the reader better informed about the enormity of the challenge faced by societies that profess to promote gender equality and impartiality in the law yet are reluctant to deal seriously with entrenched beliefs that are diametrically opposed to these goals. Ample evidence is provided to show that not only is it unrealistic to expect the law and legal procedures to solve social problems ‒ although reform is a pressing concern ‒ but the law and its implementation simply mirror back to us the places where some of the deepest resistance to gender equality lies.
Holly Johnson teaches in the Department of Criminology, University of Ottawa, Canada.