By Nithya Narayanan

The Sexual Violence Legislation Bill, introduced in late 2019, aims “to reduce the retraumatisation victims of sexual violence may experience when they attend court and give evidence”.[1] To achieve this, the Bill amends several existing pieces of legislation including the Victim Rights Act 2002, the Criminal Procedure Act 2011 and the Evidence Act 2006.[2] The Bill is an attempt to respond to past recommendations by the Law Commission, which have noted a lack of alignment between victims’ needs and the current structuring of the court process.[3] The Bill contains a number of proposed changes. Most significant among these are the restrictions on questions regarding the sexual history of the complainant, changes around judicial control over witness questioning, and alternative methods of presenting victim impact statements. However, this bill is not without criticism – concerns have been raised about whether this bill strikes the correct balance between the rights of complainants and defendants.

Sexual history with the defendant

In its current form, s 44(1) of the Evidence Act 2006 prima facie prevents any witness from being asked questions about the sexual experience of the complainant unless those questions concern the complainant’s sexual experience with the defendant.[4] The Bill effectively removes this exception for the defendant.[5] In other words, the Bill proposes that any evidence or questions relating to the complainant’s sexual history with the defendant be inadmissible, subject to the Judge giving permission.

Interestingly, a number of submissions have opposed this change on the grounds that it creates unfairness for the defendant. The New Zealand Bar Association argues that the proposed changes would (prima facie) prevent any history of consensual sex between the complainant and defendant from forming part of the admissible evidence.[6] They believe it would also prevent information about the “usual/previous sexual practices” between the complainant and defendant from being admissible.[7] The New Zealand Bar Association is of the view that this would “significantly impact” the defendant’s ability to successfully present a defence of consent.[8] The New Zealand Law Society also views this amendment as being potentially problematic: there may be a need for the jury to have information around previous sexual interaction between the parties, particularly where both the previous interactions and the allegations “involve ‘non-normative’ sex, or occurred in the context of violence…”.[9]

By contrast, victim support groups have pointed out that, since each separate instance of sexual activity requires separate consent, there is no need for a complainant’s sexual history with the defendant to be taken into account.[10]

Sexual disposition of the complainant  

The Bill also proposes to extend the protection to questions or evidence regarding the “sexual disposition” of the complainant.[11] Sexual disposition may mean, for example, “preferences or desires that may not have manifested in behaviour”.[12] Although the Evidence Act currently only makes reference to sexual experience, courts have tended to interpret the rule as extending to sexual disposition.[13] However, the proposed amendment could still be extremely valuable for more ambiguous or borderline cases. In her cabinet paper, Jan Logie cites the example of sexual fantasies that the complainant has recorded in a personal diary. Without further legislative clarification, such material is potentially not protected by the rule.[14]

Judicial control over witness questioning

Clause 9 of the Bill seeks to amend s 85 of the Evidence Act. As it stands, s 85 confers a discretionary power upon the Judge to state that a witness does not have to answer “any question that the Judge considers improper, unfair, misleading, needlessly repetitive, or expressed in [excessively complicated] language”.[15] Clause 9 of the Bill provides that, in such circumstances, the Judge must disallow the question or direct the witness not to answer. In effect, the Bill seeks to make mandatory something that is currently a matter of judicial discretion. As the New Zealand Law Society has pointed out, this amendment may make little actual difference to the operation of s 85.[16] It is unlikely that a judge, having deemed a question unacceptable, will then permit that question to be posed to the witness or allow them to decide if they would like to answer.[17] The Law Society also raises the point that, regardless of whether a witness is told they are not obliged to answer or simply directed not to answer, the question will already have been posed. Thus, failure to answer could still affect the credibility of the witness.[18] The operation of cl 9 could, in effect, send a message to the jury that the judge is “shielding” the witness from questions.[19] The Auckland District Law Society further notes that the Bill is silent as to what would ensue if a judge was found to have breached their (proposed) duty to intervene.[20]

On the other hand, “intimidating or otherwise improper questioning” not only has the potential to reduce the quality of the complainant’s evidence: it can also have a detrimental impact upon his or her wellbeing.[21] Although judges currently possess discretion to intervene, there are concerns that they may be reluctant to exercise this power out of fear that this could create grounds for an appeal.[22]

Judicial direction as to misconceptions

A further potential amendment is contained in cl 16, which proposes that a new section (126A) be added into the Evidence Act. Under the proposed legislation, “the Judge must give the jury any direction the Judge considers necessary or desirable to address any relevant misconception relating to sexual cases”.[23] This may include the misconception that a complainant bears at least partial responsibility for the crime if they “dress provocatively, act flirtatiously, drink alcohol, or take some other drug”.[24] It could also include the idea that sexual offending is “less serious” when the perpetrator is a family member of the victim, or the belief that sexual offending always involves infliction of physical injuries.[25]

Notably, the Auckland District Law Society has taken issue with this clause in several respects. They suggest, firstly, that the need for such a section should be based on proof that popular misconceptions continue to influence New Zealand juries.[26] They maintain that there is no need for a new section to be inserted to address misconceptions if such misconceptions do not, in fact, exist.[27] They further suggest that guidance is better left to expert witnesses, who are more likely to “keep abreast” of new developments in this department.[28] Expert witnesses are also more likely to understand the research behind these misconceptions in ways that judges may not.[29] It is also suggested that the term “responsibility” (as it used in cl 16) is vague, and that it might cause confusion to jurors.[30]

Alternative methods for presenting victim impact statements

Part 2 of the Bill concerns amendments to the Victims’ Rights Act 2002. Clause 22A provides for the possibility of victim impact statements being presented to the court in an alternative manner. It confers a discretionary power upon the sentencing judge to agree—at the request of the prosecutor—that all or part of a victim impact statement can be presented to the court in such a manner. For example, the victim could read their statement while in the courtroom, but be shielded from seeing the defendant in some way.[31] The statement could also be read to the court from another appropriate place outside the courtroom, or be presented via video or audio recording.[32]

Clearing the court for victim impact statements

Clause 30 proposes an amendment to the Criminal Procedure Act 2011. It essentially proposes that, in sexual cases, a court should have power to ensure that no other person is present in court when the victim impact statement is made. This is subject to certain obvious exceptions including the Judge, prosecutor, defendant and counsel.[33] In deciding such applications, the court must take into account the interests and preferences of the victim, and whether these could be met by the statement being presented to the court in an alternative way.[34]

While the Auckland District Law Society has broadly supported this change, they highlight certain flaws in the drafting. There is ostensibly no ability for the defence to challenge the application, which is to be made by the prosecutor. It is suggested that there should be an opportunity for reply: to deny this would be to breach principles of natural justice.[35]

Conclusion

The Sexual Violence Legislation Bill contains important proposed amendments to several pieces of legislation; most notably, the Evidence Act 2006. Most of these amendments seem to further the Bill’s stated purpose of supporting complainants in what is an inherently difficult journey through the criminal justice system. However, the variety of submissions made in response to the Bill provide valuable points for consideration. There is a need to balance the rights of the complainant against those of the defendant. While this is a difficult task to achieve in any sphere, the sensitive context of this Bill makes it particularly important that Parliament strikes an appropriate balance.

The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.

Featured image source: Sang Hyun Cho from Pixabay

[1] Sexual Violence Legislation Bill 2019 (185-1), explanatory note.

[2] Sexual Violence Legislation Bill, above n 1, explanatory note.

[3] Sexual Violence Legislation Bill, above n 1, explanatory note.

[4] Except with permission of the Judge, subject to s 44A requirements: see s 44(1A) of the Evidence Act 2006.

[5] Clause 8.

[6] New Zealand Bar Association “Submission to the Justice Committee on the Sexual Violence Legislation Bill 2019” at [15].

[7] New Zealand Bar Association, above n 6, at [15].

[8] At [15].

[9] New Zealand Law Society “Submission to the Justice Committee on the Sexual Violence Legislation Bill 2019” at [25].

[10] See, for example, Abuse and Rape Crisis Support Manawatu “Submission to the Justice Committee on the Sexual Violence Legislation Bill 2019”.

[11] Clause 8.

[12] Cabinet paper “Improving the justice response to victims of sexual violence” (8 April 2019) at [44].

[13] Cabinet paper, above n 12, citing B v R [2013] NZSC 151 at [61]; R v Singh [2015] NZCA 435 at [25].

[14] Cabinet paper, above n 12, at [44].

[15] Evidence Act 2006, s 85(1).

[16] New Zealand Law Society, above n 9, at [32].

[17] New Zealand Law Society, above n 9, at [32].

[18] New Zealand Law Society, above n 9, at [32].

[19] New Zealand Law Society, above n 9, at [32].

[20] Auckland District Law Society, “Submission to the Justice Committee on the Sexual Violence Legislation Bill 2019” at [55].

[21] Cabinet paper, above n 12, at [47].

[22] Cabinet paper, above n 12, at [47].

[23] Sexual Violence Legislation Bill, above n 1, cl 16.

[24] Clause 16.

[25] Clause 16.

[26] Auckland District Law Society, above n 20, at [77].

[27] At [77].

[28] At [78.1].

[29] At [78.2].

[30] At [79.1].

[31] Clause 22A.

[32] Clause 22A.

[33] Clause 30.

[34] Clause 30.

[35] Auckland District Law Society, above n 20, at [83.1].