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.

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[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.