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The Dominion
June 22, 2002
It started with a kiss
by Val Aldridge
Are
courtrooms the place to examine under-age sex that took place many years ago?
Val Aldridge reports.
Lawyers
say that changes in 1985 to the Crimes Act--principally an amendment removing
the judge's requirement to warn a jury it was unsafe to convict on
uncorroborated evidence--has caused an epidemic of sex cases relating to past
events, some as far back as 30 years.
There has to be a better way, say the experts. The case of 25-year-old Kiwi
rugby league player Willie Talau has shaken a lot of people. This month, a
jury took just 35 minutes, after a four-hour trial, to find Mr Talau not
guilty of sexual offences relating to an incident when he was 15 and the
complainant 13. But not before Mr Talau and the woman, whose name was
suppressed, had been put through the legal and social wringer.
At what point, it is asked, does incipient love and almost universal teenage
sexual experimentation become sexual violation? The law might say it is possible
for encounters behind the bike sheds to end up as sexual charges in court
years later, but let's try to apply some common sense as well.
How many adult males looked at Mr Talau and thought: "There, but for the
grace of God go I."
There will be women, too, with memories of teenage sexual escapades that got
away on them, who have long nursed a hurt. Fond young feelings of romance can
turn to ones of dismay, shame and violation.
Will more women be moved to chase the boy who became a man through the courts
a decade or more later?
John Miller, Victoria
University senior law
lecturer, says that putting former sexual activities between young people
before a jury is a draconian "sledgehammer approach". "A more
tailored and sensitive approach involving counselling and mediation is
needed."
Jan Jordan, Victoria
University senior
lecturer in criminology, says sexual "negotiation" is fraught in
teenage years and anyone making a retrospective complaint needs to get
"informed consent" about what a trial will involve and the low
likelihood of conviction. Therapy or mediation might be more appropriate.
"Many counsellors and therapists now feel it is often against the
interests of their clients to get them involved in the court system. It is a
second trauma," she says.
In recent years, society has become especially sensitive to sexual abuse.
False accusations, true accusations, unsupported stories . . . the question
of sexual offences has become a minefield.
Kitty McKinley manager of Challenge 2000, a community youth and development
agency, says it is difficult dealing with sexual offences or alleged sexual
offences in the present climate. Anybody attempting reconciliation before a
trial, as used to happen, could be construed as covering up and obstructing the
course of justice. "There is a tension now. We are perhaps
over-criminalising people and plunging them into the justice system
inappropriately."
Lawyers say that changes in 1985 to the Crimes Act--principally an amendment
removing the judge's requirement to warn a jury it was unsafe to convict on
uncorroborated evidence--has caused an "epidemic" of sex cases
relating to past events, some as far back as 30 years.
Police are now more willing to prosecute on unsupported evidence. Jittery
over the risk of ignoring what might be a genuine complaint, they have tended
to do some investigation and then take a Pontius Pilate decision. Where there
may be justification for a prosecution and a possibility that the complainant
is credible, they leave it to the courts to decide.
Lawyers agree, however, that, among the burgeoning numbers of historic cases,
the charging of an adult for offences committed when both parties were
under-age is unusual. It is not known how many similar complaints have been
made. Police say no record is kept unless complaints go to court.
Hamish Woods, police senior legal adviser, says there is no statute of
limitations on sexual crimes and anybody over the age of 14 can be charged
with a sexual crime in the adult courts. Whether a case goes ahead depends on
the quality of the evidence and whether a prima facie case can be put
forward.
Crown solicitor Ken Stone says his office's discretion is confined to whether
the charges are appropriate or whether there should be other or additional charges.
"Basically, once the system gets going, and it has been determined there
is evidence to put the accused on trial, we don't have any input to say you
can't go ahead."
David Stevens, who defended Mr Talau, says the law traditionally took a
"justice delayed is justice denied" approach. But in recent years,
it has been acknowledged that there can be good reason for making a delayed
complaint in sex cases, and under the Evidence Act a judge may point the
reason out to a jury for example, a power imbalance where the perpetrator has
continued to exercise power.
To ensure a victim has redress, the law has allowed prosecutions of
historical allegations sometimes decades afterward. But, Mr Stevens says,
"there are a lot of disturbed people out there making false complaints.
When you have a historical false complaint it is much more difficult for the
accused to defend himself (and it is usually a he) because of the
delay."
He questions, too, the fairness of a complainant being granted anonymity
while the accused's name is known when both were under-age at the time.
In general, he believes the law has gone too far in saving the prosecution
position and is undermining the right to a fair trial.
"We have to accept there are instances where it is just too unfair to
prosecute a person, and as a conse- Turn to p2 From p1 quence the complainant
is not going to be able to be heard in a criminal court. But the right to a
fair trial must be the priority, in my opinion."
Dr Stevens, making application for a stay or discharge of the Mr Talau
proceedings before Justice Paul Neazor, argued that a person's life changes
completely over 10 years from 15-25. He said it was contrary to principle to
hold the accused accountable in an adult court 10 years later and had a complaint
been made in a timely manner it would have been dealt with in the Youth
Court.
He said the accused's right to a fair trial would be prejudiced by the delay
and to proceed would be contrary to to the community sense of fair play and
decency and undermine public confidence in the administration of justice.
Justice Neazor refused the application. "In effect, this is an argument
that people should be able to leave behind wrongdoing from their youth. From
one point of view there there is a lot to be said for it, but it loses much
of its force if another party after the same period of time is still affected
by what has happened in the past, as is alleged to be the case here."
Neither was he satisfied that the lost opportunity for the offence to be dealt
with in the youth court, and what might have followed from that, provided
justification for a stay.
He said that provisions in the Children Young Persons and Their Families Act
are aimed at ensuring children and young persons who commit offences are held
accountable and encouraged to accept responsibility for their behaviour, that
they are dealt with in a way that acknowledges their needs and will give them
the opportunity to develop in responsible, beneficial and social acceptable
ways.
"To accept that someone should cease to be accountable for alleged
criminal conduct because he is no longer, by reason of age, within the
juristiction of the Youth Court would be the antithesis of what the first
part of that principle sets out."
He was not pursuaded that the delay had prejudiced the accused having a fair
trial. "The accused has certainly lost some opportunities of trying to
find information with which to attack the complainant's credibility, but that
is not enough to make the prosecution an abuse of process."
Psychologist Hamish Dixon has had 15 years experience dealing with child and
adolescent sexuality issues. As Wellington
manager of STOP, an organisation treating those who have been sexually
abused, he says that deciding the difference between normal adolescent
experimentation and abuse is a vexed issue. However, he says, there is no
doubt that some sexual acts in adolescence and pre-adolescence can be violent
and the victim's experience can be very damaging. About 12 10-12 year olds
are attending a STOP intervention course for children who carry out sexual
acts in a violent way. "But I can only agree there are some very tricky
issues because people do change their values over the course of adolescence
and early adulthood," he says.
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