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Complainants' sexual history to be off limits in court under planned new laws

Poring over a complainant’s sexual history in court will be off limits unless absolutely necessary under new laws planned by the Government.

The plans follow through on some changes recommended by the Law Commission in 2015, but they leave one of the commission’s key recommendations yet to be fully implemented.

The Government says the changes it wants are needed to make sure victims aren’t harmed more than they already have been.

If the reforms pass, evidence of a complainant’s sexual activity with anyone will only be allowed in court if withholding it would go against the interests of justice.

The one exception would be the simple fact that the complainant and the defendant in court have a sexual history.

Other planned changes include letting alleged victims have their evidence recorded, so it can be used again in any re-trial without them having to give evidence all over again.

There are also plans to let people give evidence over an audio-visual link from a more comfortable setting away from court.

It would apply to all evidence a complainant gives and places a focus on healing.

Jan Logie, the Under-Secretary to the Minister of Justice for domestic and sexual violence issues, says the planned changes will make huge differences.

"They will make a significant difference for victims and survivors of sexual violence while ensuring trials are a fair and robust process," she said.

Ms Logie said there have been calls for change for more than a decade and that today’s announcements come after a very long journey.

"This today is the next big step to ensure when victims of sexual violence reach out, the justice system and whole Government is focused on doing no more harm," she said.

"Complainants of sexual violence are relegated to be witnesses in a criminal trial…. In a formal and unfamiliar environment in front of strangers, and sometimes directly in front of the person who harmed them."

Ms Logie announced the changes at Auckland’s HELP sexual abuse support foundation, and its executive director Kathryn McPhillips said complainants often view the tough court process as "the second rape".

Ms McPhillips called the planned changes mind-blowing.

There is also a focus on judges in the changes, who would be required to intervene when there is "improper questioning".

Defence lawyers are also set to get more training for work in sexual violence cases.

Some finer details are yet to come – for instance, information given to media says "details are still being worked through" when it comes to recording evidence for use in any second trial.

The 2015 Law Commission report said sexual violence was a blight on the country.

It also called for specialised sexual violence courts.

Such courts have been undergoing a trial in Auckland and Whangarei and 1 NEWS has previously revealed the courts have slashed waiting times from two years to eight months.

But the government says "more transformational proposals" need further work so that all options and their impacts are considered.

Ms Logie said how well the specialised sexual violence pilot courts worked is being evaluated.

A Bill is set to be introduced later this year for the changes the government wants to push through, and Ms Logie hopes they’ll be law within the current Parliamentary term.

Funding for the multi-million dollar reforms has already been secured in Budget 2019.

The Cabinet paper is available here.  

The planned changes (source: Government, Ministry of Justice)

• Tightening the rules around evidence about a complainant’s sexual history, to better protect against unnecessary and distressing questioning.

Any evidence of a complainant’s sexual experience, with anyone, will only be admissible if it would be contrary to the interests of justice to exclude it. Judicial permission to lead that evidence will need to be sought prior to trial.

• Ensuring specialist assistance is available for witnesses who need it to understand and answer questions.

Currently, witnesses must have limited fluency in English or a ‘communication disability’ in order to qualify for communication assistance.

• Giving sexual violence victims the right to choose how they give their evidence and undertake cross-examination – for example by audio-visual link or pre-recorded video.

All alternative modes of evidence mean the witness doesn’t have to see the defendant. If audio-visual link or CCTV is used, the witness doesn’t have to be in the courtroom.

• Recording evidence given at trial so it can be replayed at re-trial instead of having to be given again.

Details are still being worked through, but the intention is to allow complainants’ evidence from the original trial to be used at any retrial as a normal ‘alternative way of giving evidence’.

• More protections for sexual violence victims giving their victim impact statements in court.

• Certainty for judges to intervene in unfair or inappropriate questioning, and to address common myths and misconceptions about sexual violence. 

The discretion for judges to intervene in improper questioning will be amended so that, if the judge considers the questioning is improper, they will be required to intervene.


Auckland High Court.
Auckland High Court. Source: istock.com