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Allegations of Sexual
Abuse |
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When a woman reports a rape, it is
only the start of a gruelling process. In the second of a two-part series,
Yvonne Martin looks at what it is like for women whose cases make it to
court. "Court was a nightmare,"
says a woman, 44, raped by a family friend in her home, while her two
children slept. "Having to see the guy who raped me, which meant his
face becoming clearer again in my nightmares; the accusations from the
defence lawyer and going over the events in such detail with all those
strange faces looking and listening." Another woman, 56, who works as a
community worker supporting people going to court, found the tables turned
when she was raped by a client's brother who had become her boyfriend. "I was familiar with the
court process, but I definitely found it degrading," she says. For women who report rapes and
make it through the bagatelle game of the police investigation, the criminal
trial can be brutal. Under our adversarial system, rape
trials often become bruising battles of one side trying to destroy the
credibility of the other, and messy arguments over consent. In the last 20 years, laws
covering rape have been significantly tightened, including extra protection
for victims giving evidence. Despite the improvements, rape
victims say the court process remains a white-knuckle rollercoaster ride,
with their own credibility on trial as much as that of the accused. Does our prosecution process need
a legal makeover so that it is more humane, less adversarial? And why the
confusion with the notion of consent? * * * At 2am, the single mother (then
40, now 44) was woken by a rap on the bedroom window. Seeing her neighbour's face, she
assumed something was wrong with his family and let him into the house. But the neighbour was cold-calling
for sex and, fuelled by alcohol and passion, was not about to be deterred. He forced the woman towards the
bedroom, but seeing her young son was sleeping in her bed, he raped her on
the lounge settee instead. "The awful thing was that the
door to the bedroom had been pushed open and I could see my son lying in bed
the whole time," she says. "The incident blew my life apart." In the court sequel 16 months on,
the defence lawyer made much of the cannabis cigarette she had shared with
the accused at a party earlier that night. And the nightie she was wearing
when she opened the door to let him in. "His (the accused's) story
was that I had invited him over to the house, but I must have changed my mind
and didn't want his wife to know," she says. "But his story fell down on
the fact that I had scratches and bruises and was ripped internally in two
places." The jury preferred her version of
events. He was jailed for eight years in April, 2004. The criminal who raped the
56-year-old community worker had a similar problem arguing their sex was
consensual -- her broken collarbone from being flung against a wall. Assistant Police Commissioner
Clint Rickards and former officers Brad Shipton and Bob Schollum argued that
they had consensual sex with Rotorua complainant Louise Nicholas, but denied
raping her. They were acquitted of all charges relating to her, but still
face historic sexual allegations from a second woman. With DNA advances making it harder
for men accused of rape to argue "not me", many are turning to the
defence of having reasonable belief in consent. In the absence of witnesses and
physical evidence, a trial run on such grounds can become a contest of
credibility: her word against his. The onus is on the Crown to prove
that sex was non-consensual and that the accused could not have believed on
reasonable grounds that there was consent. But the notion of consent is
hugely vexed for couples, police investigators, lawyers, lawmakers and
probably juries, too. Any Now paranoid and reclusive,
Shelley is being coerced into sex by Charlie's "if you loved me you
would" lines. "It is clear Shelley doesn't
want to do it and yet, would you say it's consensual or not?" says
Liddicoat. "There are issues about what
persuasion is and what resistance means. Possibly some men may not even be
aware that they are having non-consensual sex." Lawmakers grappled with the thorny
issue of consent when they amended the Crimes Act last year. They came up
with a list of what consent was not. Not protesting or resisting is not
consent. Neither can a person consent if they are asleep, unconscious,
rendered incapable by drugs or alcohol, or mistaken about the other person's
identity. "It would be very hard to get
even the most experienced criminal lawyer to give you a succinct definition
of consent, and that's a problem," says Catherine Rodgers, convener of
the Wellington Women Lawyers' Association. "How is the rest of society
meant to know what they are supposed to be doing if all they have is negative
definitions?" Her group is asking a select
committee considering the Evidence Bill to put some onus on the accused to
show they took positive steps to gain the complainant's consent. The group favours the Canadian
criminal code which does just that. "You can't be reckless. You can't
just blunder on in," says Rodgers. "You actually have to have a bit
of communication by the eyes, by words, to ensure that your partner is
happily involved in this activity with you." Critics of the criminal-justice
system have argued that Louise Nicholas's character was more of a focus in
her court case than the characters of the defendants. The women lawyers want a
tightening of "rape shield legislation" -- laws introduced to
control the extent to which complainants can be questioned about previous
sexual experience. For example, they want a total ban on complainants being
questioned about sexual acts with anyone other than the accused. As the law stands, victims can be
questioned about their sexual history and reputation, but only if the judge
gives special permission. Rodgers says her group is
concerned that the judge's discretion is too wide, allowing inconsistencies
to creep into the system. Not only are women much more
likely than men to be victims of sexual assault, but they may have a harder
battle proving their credibility. A discussion paper by the Law
Commission in 1997 suggested that in court proceedings, women do not have
their credibility judged in the same way as men. One reason given was that women
did not seem to fulfil the "general social expectations about how a
credible speaker is supposed to sound: like a man". Women tended to speak less
confidently than men, used more hesitant language, fillers ("you
know"), or questions with rising intonation, and were therefore less
persuasive. On the up side, law reforms have
made it easier for rape victims appearing in court. They no longer have to
give oral evidence at preliminary hearings, unless the judge considers it necessary.
No corroboration of the victim's
evidence is needed to obtain a conviction, and the Crown no longer has to
prove actual penetration of the vagina. Other improvements have been
suggested by victim advocates and lawyers pushing for a taskforce on how
rapes are tried in this country. Options include specialist courts
or an inquisitorial system where a judge is presented with evidence from both
sides. Crown prosecutor Jane Farish, of "Normally they involve quite
young complainants. There are often parallel proceedings occurring in the
Family Court, be it custody and access, or care and protection issues,"
she says. "The process in the Family Court is often a lot shorter than
the process in the criminal court." The 44-year-old single mum says
having court proceedings more promptly, and lawyers appointed to look after
victims, would make a world of difference. She had no-one to ring with
questions that filled the long sleepless nights when her trial was postponed
three times. There was nobody, aside from her counsellor, to advise her how
to dress for court or how to act. Meanwhile, the 56-year-old
community worker has chosen the restorative-justice path to resolve
outstanding issues with her boyfriend-turned-rapist. She was a shy, middle-class
academic, drawn to a guitar-playing, heavily tattooed criminal with mohawk
and dreadlocks. They were the ultimate odd couple,
attracting stares wherever they went, and they have opted for an alternative
way to resolve their conflict. The offender admitted the violent
rape at the 11th hour, sparing her from testifying. As a recidivist offender,
he got 10 years jail in 2004, and a judge's warning that it would be
open-ended preventive detention next time. The victim, disappointed that the
sentence was "overly harsh" and did not order anger management and
sexual-abuse counselling, rang the prison to ask if the offender would attend
a restorative-justice meeting. He agreed, and this week she gets
the chance to put her view before him, something denied her by his guilty
plea. "It's going to be very
difficult," she says. "But I want to make sure he hears how I feel
and how it has impacted on my life. I am very distrusting. I can't imagine
myself having a relationship with any man ever again. I never knew what
frigidity meant but I know now."
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