Sexual violence victims still being 'retraumatised' in NZ courts, more changes needed, researchers say

New sexual violence courts don't go far enough to protect victims, according to new research, with several changes and improvements recommended.

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Law professor Elisabeth McDonald shared her recommendations with Breakfast. Source: Breakfast

Law professor Elisabeth McDonald led the University of Canterbury research and criticises the prevalence of "rape mythology" still being used by defence attorneys. She's calling for further changes.

The discussion recently came to a head during the murder trial of British backpacker Grace Millane's killer late last year.

During the case, the defence raised Ms Millane's sexual history and suggested her death was rough sex gone wrong.

But the prosecution successfully argued sex is never consent to murder.

Her killer, who has not yet been named for legal reasons, was sentenced to life in prison with 17 years non-parole last week.

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During a victim impact statement, Gillian Millane revealed how she considered suicide after her daughter’s brutal murder. Source: 1 NEWS

Ms McDonald says that cross-examination during trials is still harmful and leading sexual violence victims to wish they never reported their case in the first place.

"They still say that it's retraumatising, that it's not something they would ever advise anyone else to do," she told TVNZ1's Breakfast this morning.

In the research, the team wanted to look at when in the trial victims might struggle to speak, answer questions, or when they're so distressed they need to take a break.

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They looked at 40 rape cases in total, including 10 through the new pilot sexual violence courts.

One of the triggers they found was when questioning was "reinforcing rape mythology", Ms McDonald says.

"Why didn't you tell someone straight away? Why didn't you struggle and resist more? Why did you go there in the first place? Why did it take you so long to go to the police?" Ms McDonald gave as examples.

"Sometimes complainants struggle with those because at the time they actually have no physical ability to resist and they can't explain why they didn't. That causes distress for many. 

"But it's also having to describe the detail of what actually happened, to remember the minutiae of peripheral details was also a cause for distress or anger or resistance."

The professor is calling for judges to intervene more when there's inappropriate or unnecessary questioning "in terms of the kinds of belittling and mocking things put to complainants that really were just time-wasting and did cause distress and discomfort".

Such questions were put to multiple witnesses in the Grace Millane murder trial. Those witnesses testified to previous sexual encounters with Ms Millane's murderer, as well as questioning Ms Millane's own history.

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Marie Dyhrberg says a lengthy pre-trial would have looked at including the evidence. Source: Q+A

High-profile criminal defence lawyer Marie Dyhrberg disagreed with the criticism, saying a defendant has the right to prove their innocence.

Speaking to TVNZ1's Q+A last year, she said it's so difficult to get sexual history into evidence in such trials, it "feels like you have two hands tied behind your back".

"At the moment, whatever sexual history you may have with a defendant may well have some bearing on what the case is all about so that is what one of the concerns that the discretion of judges on this evidence is going to be taken away."

In her recommendations, Ms McDonald says juries should be given a "counter-narrative" when questioning delves into that rape mythology.

"When there were questions asked and queries raised about, why was she dressed in that particular way, was she or was she not wearing a bra, nothing was explained to the jury in what you might make of that and what was legitimate to make of that," she says.

"That list of misconceptions that we see reinforced and deployed in rape trials, we think we need directions and information to be given to juries in all adult rape cases where it comes up as an issue."

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Messages of violence against women and consent are being talked about following the case. Source: 1 NEWS

The research, titled Rape Myths As Barriers To Fair Trial Process, was published by the University of Canterbury and is available online.