Justice on trial: Juries obsess on whether victim is a virgin and the length of her skirt
Source: http://www.stuff.co.nz/news/109811122/-

2019-01-14 10:32:20

Our justice system is itself on trial. Can '12 good men and true' sit in judgment on sex crime cases when, as we reveal, juries are more likely to obsess with whether the victim is a virgin and the length of her skirt on the witness stand. Today, our own citizen jury of 12 New Zealanders – men and women, old and young, Māori and Pākehā, experts and judges, lawyers and victims and members of the public – give their verdict on our justice system. The charge: that it brutalises victims of sexual assaults.


"J" kept the details of what happened at the sleep-over a secret for almost a decade – but after learning that another young girl had been assaulted by the same man, in that same house, she knew she had to act.

She almost certainly would not do so again.

"I wish I had just kept it in my head and not gone to the police," the Wellington 23-year-old says.

J's case went to court in October 2018. The accused, the father of a childhood friend, was charged with sexual assault and unlawful sexual connection. J told the court she was 10 years old when he entered the room where she was sleeping in the middle of the night, pressed his erection against her, and touched her genitals under her pyjamas.

Until she stepped into court, J was feeling pretty good about the process. She had no complaints about her dealings with police – they'd been sensitive and helpful. But once she entered the court system, things were quite different.

Even before the trial began, she was appalled by the advice she was given by the court-appointed victims adviser.

"'Make sure you don't wear too much jewellery because the jury will think you're promiscuous. Don't wear make-up, don't wear a short skirt.' It threw me into a panic – what do I wear? No make-up at all? Some make-up?

"They were kind and genuine, but it did not prepare me for court. I left more confused than when I arrived."

The statistics show traumatic experiences in our courts are the norm for complainants like J, and that's keeping reporting rates extremely low. Fewer than 10 per cent of victims ever report to police; of those just 31 per cent get to court, and just 13 per cent of cases result in a conviction. Once you boil the numbers down, that's one in a hundred assaults.

In 2016 a Law Commission report sparked a two-year trial – a Sexual Violence Pilot Court operating in Auckland and Whangarei – which will deliver its final report around the middle of this year. It aims to create a gentler, less traumatising experience for complaints and to date, has at least managed to cut the time from complaint to trial, in half. But critics of the current system claim the changes are nowhere near broad enough.

Independent volunteer victim advocate Ruth Money was eventually alerted to J's case, and stepped in to help.

"The behaviour of some players in the courtroom is out of the 1970s," she says. "Are they actually advocating for you as a person, or are they making sure you're compliant with the system?"

She points out J had an agonising three-year wait for her case to come to trial and suggests all complainants should have a "navigator" with them from the time they report to police, to the end of their court process.

The jury in J's case was not permitted to hear evidence from the other young victim, who had changed her mind about making a formal complaint. J says she was warned not to even mention this woman's existence while on the stand. That made her feel "like a liar", she says.

"The court process is humiliating and I will never get any closure from this. I'm suffering more than I was when I kept the offending to myself."

"The way it's set up now, is so wrong."


The courthouse was packed with about 100 potential jurors on the Monday morning "A" reported for jury duty. She'd never been called before, she says, and she felt "quite excited".

Juror A was ushered to a courtroom where a sexual assault trial was due to start, and sat behind a screen along with 50 others.

"When your name was called you had to walk without stopping to the jury box. They have until your butt hits the chair, to challenge," she says of the selection process.

Juror A watched as younger women, and women who were "dressed sharply" were challenged by the defence; Māori men by the prosecution. By the time all her fellow jurors had been chosen, her excitement was waning and she was starting to worry.

"This wasn't a jury of peers."

Task number one, they were told, was to select a foreman – anyone with experience running meetings should put their hand up. A scant two minutes passed before a court official demanded a name on a piece of paper.

"Of course, this really loud bloke said 'I've got experience of that', and everyone agreed he could be foreman", Juror A says.

"From that moment on he had a lot of control over the process. He was physically big, imposing, and that could have swayed people. But right from the get-go there was very little conversation. It was me against everyone else."


Frances Joychild, QC, gives a short laugh that's part rueful, part defiant.

"This is absolute heresy, what I'm saying, for the Criminal Bar – and that's why nobody's gone near it".

Joychild is acknowledged as one of the most respected players in New Zealand's legal landscape. She is also searingly, unapologetically scathing about the way the criminal justice system treats victims of sex crime.

Her ideas are radical: she wants juries replaced by expert judges who would do the questioning. Inquisitorial, not adversarial. No more cross-examination.

She agrees this is unlikely to be a popular stance with her peers.

"The Criminal Bar are obsessed with this one way of looking at it. Of course they are, they've spent their whole lives trying to get people off sexual violence charges. But what they say does not answer the fact that  there are so many people who do not get justice in this country."

At the heart of the argument is trauma. Proponents of change agree the system is out of date for victims of sex crime because it does not understand the trauma they experience. And so, in hundreds of cases, it re-traumatises them.

Joychild says research shows it is unlike any other kind of criminal assault.

"Sexual violence is breaching very private physical and psychological boundaries, and this has only really been understood in our generation.

"When I grew up, reports used to say 'she was raped, but not injured'. Now we know that the injuries are far more lifelong than a beating, or a knifing. Sexual violation is a huge thing."

Most of the ideas popping up for change are geared to making the victim's path to justice easier to bear. But Kathryn McPhillips from Auckland's sex abuse support service HELP, agrees there would be push-back against a non-adversarial system.

"The barristers don't get to be orators in the proposed system, they'd just get to ask a few questions at the end. The legal fraternity are so embedded in one way of seeing the world, I think it's hard for them see that it's not working".

This is especially true for Māori, says Kaupapa Māori academic Leonie Pihama.

"We've had, through the colonial legal system, this punitive and adversarial way of doing things that doesn't serve the wellbeing of communities. People can be put away, and then they come out and theoretically, you have done your time.

"In the Māori world you haven't done your time. You haven't resolved anything."

Justice Minister Andrew Little says the push-back has already started in conversations he's had with the Criminal Bar Association. He's been told, no matter what the crime, the testing of evidence in its current form must remain and defence should not be required to show its tactical hand before the day of the trial.

"They're taking a very doctrinaire view of trials in these sorts of cases", says Little.

Little circles back to the very low conviction rates in sexual violence cases as the key argument for change. Joychild puts it like this: "You talk to most lawyers and they'll say 'I wouldn't put my daughter through it. I'd tell her not to complain'."

"If you start from a premise that you want healing, then that's a different kind of system from 'who wins?' Because nobody wins" says McPhillips.

"I think the Criminal Bar needs to understand the accused persons don't benefit from the current systems either", Joychild confirms.

"It's a horrible thing, and no-one gets any closure."


Jo Wickliffe's office, just steps from the Auckland District Court building, is neat and stylish but the mounds of files plainly can't be contained; they've started to take over vacant spots on her desk, the windowsills, the floor. A black barrister's gown hangs from a decorative coat-rack. No wig though – that tradition disappeared years ago.

Wickliffe is someone you might want in your corner if you'd been accused of a serious crime; commanding, practical and absolutely committed to getting you off those charges. She brooks no suggestion that our justice system is somehow in need of an overhaul.

"Is the adversarial system failing?" she demands. "Depends on what you call failing.

"If there's not a guilty verdict, that's because the Crown didn't have the evidence. The assumption is, that's a bad thing. But that's what we have, a system where you try the evidence and if it doesn't meet the standard of beyond reasonable doubt, that's it."

As a legal aid barrister who works mainly in Northland and Auckland, Wickliffe takes only the gnarliest of cases – level 3 and 4 – that's drugs, or homicide, or sex. Seventy per cent of her work is in sexual violence defence.

She says there are already protocols introduced through the Sexual Violence Pilot Court programme that mean complainants are treated "very well, and fairly". These include meeting the judge and defence counsel before the trial. Defence counsel have also been encouraged to be less aggressive in cross-examination.

"I would not want to see changes that have the goal of increasing the conviction rate. Are they getting away with it because they are getting a not guilty verdict? Well, that's why we put it in front of a jury.

"I like jury trials for the very reason that you have 12 people who all bring their collective life experience. Every jury I've seen has been really attentive to what the judge has said, and they take their job very seriously."

Wickliffe worries that the system will tip too far from what she says is "the most important right" – the right to a fair trial.

"And if we start making changes that affect the fair trial rights of that person, then we're in trouble."

Professor David Williams, an expert on colonial legal history and newly-retired from Auckland University, is open to change, including the idea of getting rid of juries in favour of a judge-alone or expert judge and panel.

But Williams agrees with Wickliffe that swapping the burden of proof from "beyond reasonable doubt", to "on balance of probabilities" would be a step too far.

"You increase the possibility of unfair convictions of people who clearly, if we knew all the facts, are innocent in the way Teina Pora was," he says, referring to the man wrongly jailed as a teenager for the 1992 rape and murder of Auckland woman Susan Burdett.

He reminds us that the judge-and-jury system was created centuries ago to bring order to chaos.

"And so the adage which law students have been taught for many generations is that, it's better that 10 guilty people go free than one innocent person is found guilty."

Recent parliamentary alumni Chris Finlayson was Attorney-General when the former National government set up the Sexual Violence Pilot Court in 2016. Finlayson says he's worried by the very low number of victims willing to come forward and report, and in favour of finding better paths to justice.

"For instance, could some of these cases be heard on the marae? Why not, if people are reluctant to come forward under the current system?", he says.

But he also refuses to support a change in the burden of proof.

"It's one of those iron-clad provisions of criminal law, and I wouldn't tinker with it at all".


Their physical surroundings weren't exactly helping.

"We were in this really little room, there's no windows or access to the outside world. The foreman dominated the tea and coffee corner, so there was this feeling of being trapped", says Juror A.

She quickly realised she was the outlier – the only one who believed the young woman had been assaulted.

"One of the men said he actually believed her too, but there was no evidence. I said, what about her testimony? That's not evidence, he said."

She asked her fellow jurors what evidence they'd need, to believe the young woman's story.

"They said, four things. She had to have screamed at the time. She had to have reported immediately to police. They wanted physical evidence, blood on her underwear; and they wanted a witness, right there.

"She was never, ever going to be heard."

A juror in a different case, "Juror B", also has grave concerns about a jury's ability to deliver real justice. The rape trial she served on, in Wellington in 2017, ended with a conviction but the jurors struggled to understand their role. Most of their time in the jury room was spent locked in confusion.

"I thought it was a straightforward, open and shut case. The defendant's story didn't add up at all."

Juror B says the physical marks left on the woman, and a string of text messages admitted as evidence were compelling, but many on the jury seemed hung up over whether she had screamed or fought her attacker.

"They were saying why didn't she yell or bang on the wall? They called her naive and gullible. But that didn't mean she hadn't been raped.

"They were obsessed with the question of reasonable doubt, whereas I thought the evidence showed there was no way he was innocent."

Juror A was infuriated by the bias shown in her jury room.

"One man said, 'What I want to know is, was she a virgin?' The older woman was saying 'You know in my day they would call her a "trollop" and say she was teasing'.

"They were saying she should have screamed, and I told them it doesn't always work that way. They felt that because she wasn't showing terror, she must have been complicit."

That trial ended with the accused acquitted of all charges. Juror A says she still shakes with anger when she thinks about the experience.

"I thought there would be some level of curiosity from the jurors, some level of reflection and I was stunned to find they were not interested – they were just interested in confirming their own views, and getting out of there."


It's not so much the result that haunts her, J says, it's the court process, which heaps one layer of suffering and victimisation on top of another.

"I genuinely didn't care if he got a slap on the hand for it, I just wanted some accountability for what he did to me and others."

Immediately after the jury returned with not guilty verdicts on each count, J says the Crown Prosecutor packed up and "jumped on a plane and left."

"I thought there might be some kind of debrief but as soon as the trial was over, the police, the Crown, they didn't care any more. I was just cut off. I will never know why the jury decided not guilty, even being able to know that would have potentially helped me move on, but now I will live with questions forever."

The verdict for the broader criminal justice system in cases of sexual violence – for most of our experts at least – is "guilty", with some caveats.

"It's a serious thing to have a criminal conviction for a serious assault," says Joychild, "And I wouldn't want to see the standard of proof lowered."


Not everyone is suggesting the current system be sent down for life with no parole. But most we spoke to think urgent change is needed, and what's being done at the moment may not be nearly enough. In its 2015 report the Law Commission concluded that "incremental change, which has been struggling forward over the past three decades, will not bring about the desired result."

So what would a new frontier for sex crime justice look like?

Leonie Pihama takes the hardest line: she wants to see marae justice, as already practised in some pockets of the country, as the preferred option for Māori.

"I'm all for dismantling the system entirely. These piecemeal changes are okay for now but they're not going to change anything in the long term."

Kathryn McPhillips suspects radical change will be hard to come by, and therefore "tutu-ing" with things like the Sexual Violence Pilot Court is better than nothing.

Both believe restorative justice, whether through face-to-face meetings or other forms of reparation, would serve most victims and perpetrators best.

Along the same lines, Joychild thinks a civil trial option, where the accused pays reparation but does not end up with a conviction, would work.

Her vision for the criminal courts is likely to be more controversial.

"I would have two judges. I'd allow the victim to have their own lawyer.

"There should be more questioning without having to be in the presence of the accused. I think consideration should be given to it not being in public because the complainants are having to talk about deeply intimate things.

"The judges would interview them in a quiet and calm way, but you still test everything. And then you do the same for the accused."

They are unlikely to get their wish, even with a Justice Minister who is actively looking for ways to help the system evolve. Andrew Little says he's committed to spending his personal political capital to make change  – "I've told the Prime Minister I'm happy to take that fight on" – but there are bumps in the road ahead.

"I foresee difficulties in a criminal system where, in some cases, there would be inquisitorial style, and in others we stick with the principles we've got at the moment.

"The way evidence is given, that gives more protection to victims of sexual violence, we need to be looking at that.

"But fundamentally, changing our style of advocacy requires a huge leap that would take a long time and extensive public debate to get there."

J would like to see changes made to give victims better information and support, both pre-and-post verdict.

"The prosecutor did say if we had had a different jury, or a judge alone, we probably would have had a guilty verdict," she says.

"I would prefer no jury – these people are not qualified to make decisions like this, especially in cases of sexual assault. Giving victims a report explaining the rationale as to why they didn't believe them would also be great."

She suggests an option for a "not proven" verdict would be an improvement for victims over the status quo, with guilty, or not guilty as the only alternatives.

"Saying he's not guilty, means he got away with it completely. I'm devastated. For it to come to this, it's like – what do I do now?"

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