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Allegations of Sexual
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The Louise Nicholas case showed us
the anguish that rape complainants go through on the tortuous path through
court. In the first of a special two-part report, YVONNE MARTIN investigates the
multiple problems facing rape victims in their quest for justice. A Christchurch woman watched in
mortification as the Louise Nicholas court trial was played out in lounges
throughout New Zealand. "I despair of our system that
puts women through that," she says. Thirty years have passed since the
woman was raped at knifepoint by a stranger at the city hotel where she
worked as a housemaid. But it might as well have been
last week. The woman, who has automatic name
suppression as a sexual-assault victim, is now a successful professional,
wife and mother. Decades on, she is surprised how
easily the tears still flow. In recalling the trial process, she says:
"It's like being on a conveyor belt and you can't get off. "The outstanding thing I
remember is the complete loss of sense of self and any identity. It took some
time to rebuild that." Up north, Louise Nicholas has now stepped
from the conveyor belt. Assistant Police Commissioner Clint Rickards and
former policemen Brad Shipton and Bob Schollum were acquitted in March of
charges of raping her. But it has now emerged that a
second woman is about to go to court with her own allegations from the 1980s
against the same three men. In the Christchurch District Court
this week, a young woman alleged rape by two chefs at the Two Fat Indians
restaurant, and in Wellington, another rape complainant was labelled a
"drama queen" by the accused man's lawyer. The protests, street marches and
leaflet campaigns that followed the Nicholas case all signalled one thing --
a strong backlash against how violent sex crimes are tried in this country. Victim advocates, academics and
lawyers are now joining forces to lobby the Government for a better way than
the bruising adversarial system we use now. Women rape victims around the
country are avoiding or dropping out of the criminal-justice system at
phenomenally high rates. Endemic police scepticism towards
rape complaints and the desire to avoid going to court are two possible
reasons raised. Rape statistics are notoriously
unreliable in this country, but perhaps as few as one in five rape complaints
ever make it to court. Clearly there are significant
problems when even a sexual abuse support agency manager tells The Weekend
Press that if she were raped, she would not report it. Some positive changes have been
made to rape laws since the Christchurch woman's case was tried in 1976, and
police are trying to improve their handling of sexual-assault complaints. But
is the current law working for everyone or just for some? Have the scales of
justice tipped too far towards protecting the rights of the accused? Is it time for a fresh look at how
complaints are dealt with, from the initial reporting to sentencing options
for perpetrators? Judging by the issues and
discontent our reporting has found with the system, a review is long overdue.
Paulette Benton-Greig is a
development manager at the Auckland Sexual Abuse Help Foundation which
supports victims making rape complaints. However, if she ever had the
misfortune of being raped herself, she is adamant she would not report it. "The reporting process often
takes six hours," says Benton-Greig. "Police want incredible
detail of what happened, which most women are not comfortable talking about
at that stage. And the police often come from a point of view of disbelief. "I see it all the time. I
would never do it. "Most of the cases reported
to the police do not go to prosecution," she says. "There is no
attempt to prosecute." A British crime survey indicated
that at least seven per cent of women had suffered a serious sexual assault
since the age of 16 and five per cent had been raped. It is unknown how many approach
the police to report sexual assaults in New Zealand each year. Police crime
statistics count the number of offences that occurred and the numbers
"resolved" through prosecutions and other actions, not the human traffic
through the front door. Support agencies estimate that
only one in 10 rapes are reported, based on UK research. British conviction rates for
reported rape cases are a low five per cent, but it is virtually impossible
to establish New Zealand's. The best guess is that of 917
sexual- violation offences recorded by police last year, about a third made
it to court. But Ministry of Justice figures on
convictions do not align with police statistics in a way that allows for
meaningful comparisons. The latest court figures available, from 2004, show a
26 per cent drop in rape convictions to 181, and a 21% drop in convictions
for unlawful sexual connection to 345. To D2 Continued from D1 "Anecdotally, we might think
the prosecution rates are higher here," says Wellington human-rights
lawyer Joy Liddicoat. "But the point is, we don't know." Victoria University criminologist
Dr Jan Jordan has made it her mission to tackle the rape crisis head on. She is an authority on rape,
having extensively researched the topic, helped the police improve its policy
and practices, and written a book on how the system fails sexual
complainants. The biggest attrition, Jordan
says, is that the majority of rapes are not reported in the first place. Barriers to reporting rape include
feelings of shame, concerns the women themselves will be blamed, fear of
reprisals, and not wanting to go to court. The reluctance to report rape is
compounded when the offender is known to complainants, perhaps a partner or
brother-in-law. In her book The Word of a Woman?,
Jordan describes rape as "one of the most concealed, minimised and
misunderstood offences on the statute books". In her proudly feminist view, she
blames centuries of negative attitudes towards women and a justice system
designed primarily around men's interests. A s gatekeepers to the
criminal-justice system, police walk a tightrope between the victim and the
accused. They must preserve the balance of
justice and guard against false complaints and wrongful convictions. But an overzealous commitment to
the rights of the accused may unwittingly tip the balance the other way, says
Jordan. "The police may become, in
effect, the adjudicators, applying their own judgments and interpretations to
individual cases," she says. Jordan believes a "pervasive
thread of disbelief" saturates police culture, tainting officers' views
on sexual complaints. Police trained as sexual-assault
investigators have estimated to her that up to 80% of complaints they receive
are false. Police statistics record the
number of false complaints they receive (424 last year) but don't break them
down for individual offences like rape. International research has
indicated a far lower false rape complaint rate, in the 5% to 10% range, says
Jordan. Some rape complaints considered
false, plus those withdrawn by complainants or unable to proceed through
insufficient evidence, end in an ambiguous scrap-heap category called
"no offence disclosed". The category means different
things to different officers, but some have told Jordan the code was used as
a tool to "resolve" crimes and bolster police statistics. Up until the late 1990s, about 30%
of rape complaints were "cleared" this way. Police still use the code when
rape complaints are abandoned, for whatever reason, but the cases are no
longer counted among those cleared. As a respected researcher on rape,
Jordan contributed to the development of a 1998 national police policy on
investigating sexual-assault complaints. The policy to standardise how
complaints are processed was supposed to have a two-year lead-in period. But
a few years on, even some sexual-assault investigators interviewed by Jordan
were unaware it existed. Today, there is still little consistency
around the country in how police process complaints, such as the timing of
medical examinations and the taking of witness statements. "Reporting rape shouldn't be
like buying a Lotto ticket. You are lucky if you get a good cop on the day
and not if you don't," says Jordan. "There are a lot of very
sympathetic, positive police officers, both male and female, working for the
organisation, who do serve rape victims well. But they are often let down by
their colleagues who don't." In one case reported to Jordan, a
keen and diligent detective constable took a statement from a young woman
complaining of being raped late one night by two men. The officer took her statement
straight after her forensic medical. However, the complainant was so
wrung out by then, she did not even read her statement before signing it. The
document -- mostly in the officer's words -- was sent away to the police's
criminal profiling unit in Auckland for verification. Its opinion? A false statement. Fortunately, police bosses picked
up the problem and the woman was re-interviewed. Two offenders were later
convicted and jailed for the offence. A Victoria University study of 48
women who reported rape or sexual- violation-type complaints in the early
1990s, found 64% were satisfied with the police's response. A cup of coffee or a break during
interviews for a smoke or to regain composure worked well for the women. However, 32% of women were
dissatisfied, because they felt the police lacked empathy, did not believe
them, or did not appear to treat their complaint as important. At least 18 women felt the police
were sceptical about their complaint or that they had to persuade the
officer-turned-judge-and-jury of their case. One woman was accused of making
her complaint up for attention. Another was told she seemed too calm to have
been raped and one was asked if she had fabricated her complaint out of
malice or revenge. At least three women said the
police had threatened to charge them with laying a false complaint. You might expect the police to
fudge all of these findings and dismiss Jordan's concerns as the ravings of a
rampant feminist. But the police's new national co-
ordinator of adult sexual assault and child abuse, Detective Senior Sergeant
Neil Holden, does not dispute any of them. It is his job to ensure the
police's front doors are open all hours, welcome mats out, for women
reporting sexual complaints throughout the country. However, Holden is frank about the
police's conundrum -- the thin blue line is stretched far enough as it is. "Of course we have got to be
seen as more receptive. Of course, we've got to be saying come to us if it's
a case of sexual safety or just health. Let us be the front door to putting
you in the right direction," he says. "We need to tidy it up to say
we are really addressing the matter, we are wanting to make it a lot better,
so bring more work to us. "The catch is, we're not
going to probably be able to get around to do it all." The police's approach to victims
should be "really open and engaging, empathetic and very, very
consistent". "If you go to police in
Auckland, and you go to police in Twizel, Bluff or Christchurch, you should
be getting the same approach," says Holden. "If it's not, then it's
down to human failings. We are going to have that." He is aware the 1998 national
policy may be outdated now, and need revising rather than rolling out. Holden will also be looking at how
statistics are collected so that all sexual-assault complaints received are
recorded, not just offences. Shifting officers' attitudes
towards being more receptive and believing is a little harder. Holden hopes a new initiative
about to be launched in Auckland may be the catalyst for change. Auckland police are setting up a
specialist anti-rape squad, similar to child-abuse units, to set the gold
standard on investigating adult sexual assaults. A sergeant and four
detectives will work exclusively on this crime. They will work alongside experts
from community agencies and other state departments. "In a big centre, they've got
the workload, they're creating the resources, and I'd like to think that they
may create a centre of excellence for us and we should be modelling our
behaviours of investigators from around the country," says Holden. If they get the formula right,
police hope the unit will also encourage more women to report sexual
assaults. Complainants will then be "triaged" at the unit and
directed to the service they need, be it police, psychiatric, Aids or
pregnancy help. The UK police are already well
down this social-service path. Project Sapphire began five years ago to
investigate sexual assaults, improve how victims are dealt with and try to
prevent crimes occurring. Pubs and clubs are frequently
visited to raise awareness about date- rape drugs and parents are urged to
monitor their children's cyber lives on the internet. A one-stop-shop hospital unit
known as The Haven has provided the best available care for victims of rape
in parts of South London. Back home, Christchurch police say
their attitudes to dealing with rape complaints have changed significantly in
the last few decades. "One of the problems we had
in the past was that people would actually make their mind up before they had
all of the facts," says adult sexual assault co-ordinator Detective
Inspector Peter Read. Now, the emphasis is on a thorough
investigation, even where the evidence appears to be scant, so an informed
decision can be made. "Sometimes it is not going to
go the way of the complainant and other times it is," says Read.
"But at least the decision should be based on the facts, rather than
impressions that different people had." Victims are involved in the
decision of whether their complaint goes to court and can withdraw at any
time up until the accused is charged. Police have developed partnerships
with victim crisis groups, such as Safecare, which are called in to support
complainants reporting rape. Safecare co-ordinator Ali Cooper
says complainants are being heard. "We find the police quite
excellent," she says. "There is the exception, perhaps, where an
officer is not so sympathetic. But that is rare. We are very lucky here in
Christchurch." But behind the positive buzz, a
top detective speaks privately of his concerns that the bar of proof must
remain high to protect against wrongful convictions. "It has to be taken seriously
because if you had a brother, or a father, or some male relative in jail for
12 years, simply because the complainant was believed, that's sad. Very
sad." There were many motivations for
false complaints in his book: "Everything from the ugly, fat lady who is
60 and never had a boyfriend and is looking for some attention, to the
16-year-old girl who is late home and knows she shouldn't be. Or the wife who
engaged in some sort of infidelity and is trying to cover her arse. "We have to be very, very
careful that innocent people are not convicted, simply on the say-so of a
scorned woman or whoever," he says. Lawyer Liddicoat says the Nicholas
trial ended with no sense of completion and a strong mood for change. "There is a genuine desire
from a range of people to take a breath, have a cup of tea, and say 'look,
there's got to be a better way'," she says. "If you get judges, criminal
lawyers, prosecutors and, most importantly, survivors, around a table, surely
in this day and age we can come up with something better?" Next Saturday: How the court
system deals with rape cases. . POSSIBLE SOLUTIONS Victim-support workers and lawyers
are calling for a taskforce to look at alternatives for how sexual assaults
are tried. Options include: * Replacing our adversarial system
with an inquisitorial system. A judge is presented with evidence from both
sides. There is no jury to convince and the accused's right to silence is
removed. Victoria, Australia, uses an
inquisitorial court process and specialist courts. * Specialist courts for sexual
assault as they have in South Africa. New Zealand already has dedicated
courts for youth, young drug offenders and families. A taskforce in New South Wales
also recommended specialist courts in a report to the NSW Attorney-General
earlier this year, among other measures. * A restorative-justice system,
where the two sides are brought together by a facilitator and reach a mutual
agreement. * Introducing a positive standard
for sexual consent, as in Canada. To prove rape, the Crown has to prove the
sex was non- consensual and that the accused could not have believed on
reasonable grounds that there was consent. Canada's criminal code adds a
further provision. If the accused runs the defence that they believed they
had consent, they must show whether or not they took reasonable steps to
ascertain that consent. Example: "I asked and she said yes." * Have you got a story to tell? Phone
Yvonne Martin on 364-8494 ext 767, or email yvonne. [email protected] Feedback to feedback@press. co.nz Need help? Try contacting: * The Sexual Abuse Centre, phone
365-3626, or email TheSexualAbuseCentre@xtra. co.nz. Its website is www.
sexualabuse.co.nz * Sexual Abuse Survivors' Trust,
phone 377-5401, or email sast@sast. org.nz. Its website is www. sast.org.nz -------------------- CAPTION: Twice the victim: Women who have
faced the trauma of rape are increasingly reluctant to put themselves through
the ordeal of a court case. Photo: Fairfax/illustration: Mark Cornell. Mood
for change: a protest in support of Louise Nicholas in Cathedral Square last
month. Photo: David Hallett
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