Tuesday, 27 March 2018

SEXUAL ASSAULT AND THE PRESUMPTION OF INNOCENCE


26 March 2018

Last year some politicians called for radical reform of the justice system by ensuring that rape accusers are believed by police as a starting point of an investigation. Following the recent debate in the media around the “Me Too” movement, the cry 'believe the victim' has become further popularized. To presume that all sexual-assault complainants tell the truth imposes a presumption of guilt on defendants. This reversal of the presumption would encourage Police to cut corners rather than dispassionately and thoroughly investigate complaints. Two cases I have been involved in highlight the risks.

Around two years ago I successfully defended a male who faced several counts of rape relating to allegations made by his former partner from when they were in a relationship, six-years previously. The complaints were made to Lower Hutt Police in 2015 within days of the male applying in the Family Court for full custody of the children from the relationship. This scenario is not uncommon.

The complainant made an extensive four-hour evidential video interview detailing severe sexual and physical violence that even included her being chased around a property with a samurai sword.

When the case proceeded to trial, it became apparent that Police had failed to attend the addresses where the alleged offending was said to have occurred in order to corroborate any aspect of her complaints. For instance, a Wellington hotel was one place where the woman said she sought refuge and the male arrived and threatened her - but no attempt was made to obtain a copy of the hotel register to confirm she was even there.

During trial the complainant detailed accounts of sexual violence, which if correct would mean that my client was an absolute monster. This view, however, was contradicted when her former best friend gave evidence that the complainant actually introduced the male to her as a ‘great catch’ mere weeks after the complainant and her then partner had broken up.

Another example involves a lesbian client who was charged with sexual offending against the 14-year-old son of her gay partner. During a party, after most of the guests had gone, my client had fallen asleep mildly intoxicated on one end of an L-shaped couch in the lounge of the family home. She was woken by the feeling of the 14-year-old penetrating her. He did not ejaculate inside her, but at the last pulled out and climaxed on the squabs of the sofa next to her as she lay paralysed with shock and fear.

After a week of struggling with what to do, she told her partner and it was agreed that she should go to the Police and make a complaint as the boy needed help.  My client believed that the police would treat a sexual assault complaint seriously and with sensitivity. With the support of her brother who accompanied her she went to the local police station.  She gave an evidential video interview and was examined by a doctor who completed a “rape kit” form (this is the standard, pre-packaged, police forensic testing kit for noting bruises and taking DNA swabs).

During the medical examination she was not asked to remove her clothes and thus the bruises and hand marks left on her back and thighs from where her jeans and underwear were pulled off, and from where her legs were forced apart while she slept, were missed. My client however thought it was important to document the bruises, so after her interview she went home and with her cell-phone photographed herself the hand and finger-shaped bruises on her body. She thought she would give them to Police when they come back to talk with her.

Police interview the boy, his mother, some other guests and the boy’s friends. The boy agrees that sex occurred but that it was consensual and that the ‘victim’ was "gagging for it.” He agreed with her account that no kissing or touching occurred and that she had lain there silent and motionless. He also said that she plied him with alcohol and was rubbing against him all night, and that after their encounter he got up intoxicated and went to his sleep-out and fell straight to sleep.

My client and the boy in their interviews and drawings differed about where sex had occurred. She said she was raped at a top end of the couch. In his police interview the boy however said the encounter took place at the intersection of the "L" of the couch.

After several weeks she is asked to come into the Police Station. She meets the Detective in a small room, who then proceeds to tell her Police don't believe her and she will be charged with having sex with an under-aged person. Further, as they do not believe her, this must mean that she told lies to get the teenager arrested, and therefore she would also be charged with "conspiring to make a false accusation."

At trial several things stood out from the evidence.  First, as with the bruising which was not documented, the Police also failed to undertake a DNA analysis on the areas of the couch referred to in the two interviews. As well, it turns out that the rape kit was never sent to the ESR, and that there was no forensic analysis of the couch where the rape or the "consensual sex devoid of human intimacy" occurred.

Surely, if Police investigated for DNA from semen it would show which account was most reliable? I asked the Detective at trial why Police never bothered to undertake such an analysis of the couch. She answered with a dismissive shrug saying, "He's 14, he probably masturbates all over the place."

The contradictions between the boy and his friends' accounts were never investigated. Several inconsistencies (among many) stand out: the boy said that my client plied him with large amounts of alcohol during the night as she repeatedly in front of his friends came into his sleep-out to rub her buttocks against him. Yet, during trial and in their statements, his friends were clear that she only gave them all one sip from her bottle and that she never rubbed her body against their friend. Of note, the friends are clear that when the boy came back to the sleep-out, he did not to go straight to sleep, but stayed up playing video games with them.

I asked my client: "Having gone through this, if you were ever again the victim of sexual violence, would you go to the Police?" “Never", she replied.

"You wonder why 9 out of 10 sexual violence cases go unreported in New Zealand?[1] I asked the Jury.  “The answer has been sitting in that dock all week.”

The Jury when confronted with all this returned ‘Not Guilty’ verdicts on all charges.

I have great sympathy for people who suffer sexual abuse, however an automatic ‘believe the victim’ starting point in a prosecution can and must have no place in criminal trials. Calls to radically change laws in this area protect no one and increase the risk of people who are innocent being both charged and worse possibly convicted.


[1] Mossman, S.E., Triggs, S., Jordan, J., and Kingi, V. (2009). Responding to sexual violence: attrition in the New Zealand criminal justice system (Wellington, Ministry of Women's Affairs, September, 2009), 93pp.

Wednesday, 28 February 2018

Trial by Ordeal - Bex's Story


16 March 2018

As a defence lawyer, one is confronted on an almost daily basis with a wide range of people from a kaleidoscope of situations. In thinking back over one's career, some cases stand out as particularly memorable. The case I am going to talk about here is one of those.

In the winter of 2016, I had a phone call from a local Family Court lawyer, asking if I would be prepared to act for a young single mother (who here I will call “Bex”); she had two children aged six and nine, and was facing serious charges. Yes, I would, I replied and after getting Bex's number, I phoned and we arranged to meet. Conveniently, Bex lived in Upper Hutt where my chambers are, and it was there that we sat down and I learnt that she had been charged with several counts of "sexual conduct with a young person under 16". (An offence which carries with it a maximum sentence of 10 years in jail.) Now here is the first thing that stood out about this case: Bex is a lesbian. The unlawful sexual connection she had been charged with was allegedly with the 14-year-old son of her lesbian partner.

First impressions are always interesting and Bex proved no exception. She was a pale young woman with short hair, quietly spoken, dressed in loose jeans with a polar fleece hoody. Presenting deep vulnerability she seemed on the verge of tears and was clearly shattered. As she spoke I learnt the early background to her life, which was growing up in a home with parents who couldn't accept that their daughter was gay – Bex’s dad had passed away when she was just 14. As she grew into teenage years she found couldn't talk to her mother about her sexual orientation at all. When she spoke of her feelings towards other girls, she was told it was “just a phase.” As she grew older, she suppressed her feelings by dating men, and for some years she thought she was bisexual. It was from these relationships that she had her two children. Later, in her mid 20’s, she came out and acknowledged that she was gay. In time she found herself a partner - a woman a few years older than Bex who had a couple of teenage sons. They moved in together and the families blended happily and well.

Soon it was time for Bex's birthday, and taking advantage of the occasion, the couple decided to hold a party. This happened one weekend and it was a good night – the children with some of their mates over, Bex and her partner's friends, music, nice food and a bit of drink. Bex had a few, it was her birthday after all. After most the adults had left, she went into the kitchen and ate some cold pasta, before falling into a deep sleep on the L-shaped couch, in the living room - it was pretty late and she didn't want to disturb her partner who had gone to bed a bit earlier.

Some-time later, Bex abruptly awoke. (And here I must warn you that what follows is unavoidably sexually explicit.) Conscious now, Bex was immediately aware that her jeans had been pulled off and that she was being digitally penetrated, an assault that rapidly became full vaginal rape – an experience made truly hideous by the realisation that it was the 14-year-old son of her partner committing the act. To me in my chambers, Bex recounted the nausea and extreme discomfort she felt as the boy had rough penetrative sex with her. He did not ejaculate inside her, but at the last pulled out and climaxed on the squabs of the sofa next to Bex who, traumatised, was paralysed with shock and fear.

Bex, her eyes now shut, became aware that the boy had got up. She heard the kitchen door slam and presently, sounds from the sleep-out where his mates were still playing video games. In a dreadful state, Bex manages to put her jeans back on and tries to deal with the enormity of what had just happened. What could she do? The person she naturally would turn to straight away, her partner, was the mother of the boy who had done this to her. A boy in fact who Bex had started to think of as her own son. The family she and her partner had made was now completely destroyed. How could everything not be ruined if Bex were to tell someone? But how on earth could she keep this to herself? It was a living nightmare. Overwhelmed and beyond exhausted, Bex could do nothing but climb into bed alongside the woman she loved and cry herself to sleep, which she did.

As the next day dawned, Bex woke to the toxic cocktail of emotions so often experienced by those who have suffered sexual violation: revulsion, confusion, anger, and a deep depression – feelings that cannot be hidden for long and her partner is soon aware that a terrible change has come over Bex who is, nevertheless, saying nothing. A week of misery goes by, a week made even worse by the fact that the boy has not finished. He tried repeatedly to get close to Bex, even climbing into her bed one morning when his mother has got up to go to the toilet. Fending off these repeated sexual advances, Bex becomes even more withdrawn until her partner, very worried indeed, confronts her, insisting that Bex share her feelings and explain what is wrong. Bex after a week, no longer able to bear it, finally tells her what happened. Hearing the news her partner is devastated and frightened. The initial shock soon moving to the realisation that her son badly needs help, and that this was a terrible thing that he had done. She felt that Bex for all their sakes simply had to go to the police and insisted that she do so: “My 14-year-old son is a rapist. He needs help.”

Bex was frightened at what to expect, however she believed that the police will treat a sexual assault complaint seriously and with sensitivity. With the support of her brother who accompanied her she went to the local police station..  She gave an evidential video interview as well as being examined by a doctor, who completed a “rape kit” form (this is the standard, pre-packaged, police forensic testing kit for noting bruises and taking DNA swabs). It is filled in by hand, and after first recording on pre-drawn human figures any physical marks or trauma noted during the physical examination, it is sealed and sent to the ESR).

While at the Police Station during the medical examination Bex is not asked to remove her clothes, and police and the doctor miss the bruises and hand marks left on her back and thighs from where her jeans and underwear were pulled off and from where her legs were forced apart while she slept. Bex thinks it is important to document the bruises, so after her interview, she goes home and stands in front of a full-length mirror in her knickers and with her cell-phone photographs the hand and finger shaped bruises on her body. She thinks, when the Police come back to talk with her, she will give them the photographs then.
Police interview the boy, his mother, some other guests and the boy’s friends. The boy agrees that sex occurred but that it was consensual and that Bex was "gagging for it.” He agrees with Bex's account that no kissing, no touching occurred. She just lay there silent and motionless. He also said that Bex plied him with alcohol and was rubbing against him all night. And after, their encounter he got up intoxicated and went to his sleepout, and fell straight to sleep.

As far as human interaction was involved, mutual intimate affection was non-existent.  Bex and the boy in their interviews and drawings said sex occurred at different areas on the couch. Bex said she was raped at a top end of the couch. In his police interview the boy said the encounter was consensual and took place at the intersection of the "L" of the couch.

After Bex gave her interview, she hears nothing. Weeks go by, and one-day she is asked to come into the Police Station. After work she drives down as arranged. She meets the Detective in a small room.  The detective proceeds to tell her they don't believe her and she will be charged. Further, as they do not believe her, this must mean that she told lies to get the teenager charged, so she would also be charged with "conspiring to make a false accusation." Bex is completely shocked. Bex went to Police seeking their help. She was a stranger to the legal system and thought she could trust the Police.

The case after months went to trial. Several things stood out from the evidence.  First as with the bruising which Police failed to document, it transpired that they also failed to undertake a DNA analysis on the areas of the couch referred to in the two interviews. It turns out that the rape kit was never sent to the ESR, that there was no forensic analysis of the couch where the rape or the "consensual sex devoid of human intimacy" occurred.

Surely, if Police investigated for DNA from semen it would show which account was most reliable? I asked the Detective at trial why Police never bothered to undertake any DNA analysis of the couch? She answered with a dismissive shrug saying, "He's 14, he probably masturbates all over the place."

On preparing for this trial I had to apply to make several applications to get access to the same evidence as held by the Crown. In this case the DVD of the boy’s interview. Why? Over the years a number of MPs with little experience of trials, have sought to increase their popularity by being "tough on crime". People who are charged are more likely to be guilty they reason, so steps should be put in place to short-circuit the process of trial. In cases involving sexual crimes previously the defence was given the same information in disclosure as the Crown. Not so now, Parliament has voted to block defence lawyers from having access to the Evidential Video Interviews of complainants. We now have to make, in very limited circumstances, an application to the Judge to gain what was previously given as a matter of routine disclosure for a fair trial. This is despite our Bill of Rights Act 1990 guaranteeing the defence equal access to witnesses and evidence as the Crown.

Eventually following several applications, against the opposition of the Crown, the Court released the DVD to myself.  Bex and I viewed it together for several hours. What became apparent was that when the boy when was "recounting" the sexual liaison his answers were short and stilted in their delivery. He repeatedly asked the interviewer, "why are you asking that?". Whereas when he was asked about matters unrelated to the complaint his answers were given in a relaxed and rather garrulous manner. It suddenly hit me, that this young man appeared when it came to recounting "sex" was not recalling from memory at all but seemed to be constructing a script in his head.

It appears the contradictions between the boy and his friends were never investigated. Several inconsistencies (from many) stand out: the boy said that Bex plied him with large amounts of alcohol during the night as she repeatedly came into his sleepout to rub her buttocks against him, in front of his friends. Yet, during trial and in their statements, his friends were clear that Bex only gave them all one sip from her bottle and that Bex never rubbed her body against their friend. Of note, the friends are clear when the boy came back to the sleepout, he did not to go straight to sleep, but stayed up playing video games with them.

What struck me, however, was that in preparing for this case, I found the Police failed a victim, conducted a forensically weak investigation and were aided in this by a system increasingly geared to making the job of defence lawyers even harder and by extension increasingly hostile to protections like the presumption of innocence.

I asked Bex: "Having gone through this, if you were ever again the victim of sexual violence, would you go to the Police?" “Never", Bex replied.

In closing to the Jury I quoted a 2009 study from the Ministry of Women's Affairs, saying that "an estimated nine in ten sexual offences are not reported to police." You wonder why 9 out of 10 sexual violence cases go unreported in New Zealand?[1] “The answer members of the jury, has been sitting in that dock all week.”

The Jury when confronted with all this, returned the only verdicts that were reasonably available, "Not Guilty" to all charges. While relieved, I still believe that this case should never have got this far. Bex and her complaint deserved better than this. Meanwhile there is a now 16-year-old in our midst who thinks he can get away with what he did.



[1] Mossman, S.E., Triggs, S., Jordan, J., and Kingi, V. (2009). Responding to sexual violence: attrition in the New Zealand criminal justice system (Wellington, Ministry of Women's Affairs, September, 2009), 93pp.