Cross-Examination: Shifting the Burden of Proof in Sexual Assault Cases

Jessica Fitzgerald, content contributor

The prevalence of sexual assault cases that have dominated the New Zealand media in the past few years, such as the infamous “Roast Busters” scandal, has led to public outcry over the perception of a justice system that is “broken”.[1] In response, in 2014 both National and Labour released pre-election proposals aiming to improve how the court system upholds justice for victims. Labour’s policy, which was aimed at “eliminating violence against women and children”, involved among other measures “shifting the burden of proof on the issue of consent to the defence”. [2] Public response to this has been mixed, with some decrying the policy as breaching the fundamental right to be considered innocent until proven guilty, whilst supporters point to the discrepancy between reported crimes and convictions as proof that the system needs drastic upheaval.

Labour’s proposal was preceded by Sir Owen Glenn’s independent inquiry into domestic violence, with the first ‘People’s Report’ released in June 2014. [3] The so-called Glenn Inquiry denounced the “court system structure and processes, and the people working within it, as re-victimising and re-traumatising victims seeking help.”[4] Furthermore, it recommended shifting the “burden of proof so that it lies with perpetrators not victims.”[5] In response to the inquiry’s comprehensively negative review of the court system and processes, then-Justice Minister Judith Collins stated that she would not consider changing the burden of proof, as “the last thing I want to do is have our whole domestic violence work called into question by anybody saying it was impossible to prove that someone hasn’t actually assaulted someone.”[6] In contrast, Labour’s then Justice Spokesperson Andrew Little confirmed that shifting the burden of proof was one of the party’s new domestic and sexual violence policy measures.[7] Therefore, although the Glenn Inquiry in itself focused on a shift in proof towards domestic violence offences, it proved to be the impetus for Labour’s proposal to reform the burden of proof laws around sexual (and domestic) violence.

Under Labour’s proposed policy,  if the Crown was able to prove a sexual encounter and the defendant’s identity in cases of rape, it would be considered rape unless the defendant could prove the act was consensual.[8] Mr Little noted that beyond the Crown having to prove sex and the individual’s identity, it also had to raise the issue of consent, as “the issue of proof would only apply where allegations of rape had been raised.”[9]

The proposal is part of the party’s wider policy aimed at eliminating violence against women and children, which also includes a plan to transform the court system from its existing adversarial structure to a more inquisitorial procedure, as first outlined in the Law Commission’s 2012 report.[10] Labour advocates a shift away from the current style characterised by often aggressive cross-examination and drawn-out proceedings that further harm victims, towards one with a greater focus on the victim’s interests and increased collaboration.[11]

Labour has justified a radical change in the burden of proof by pointing to the comparatively small number of successful prosecutions for sexual violence compared to prosecutions for other offences as a proof that the current system is not handling the cases satisfactorily.[12] In response to claims that shifting the burden amounted to a breach of the presumption to innocence, Mr Little countered by arguing first that the issue of proof would only apply in rape cases, and secondly that “the basic facts of the case still have to be made out — but it does mean the prosecution doesn’t need to prove a negative, namely that there was no consent”.[13]

The English case of Woolmington v DPP stands for the general rule in criminal law that “the principle that the prosecution must prove the guilt of the prisoner is part of the common law and no attempt to whittle it down can be entertained.”[14] This fundamental principle is protected in s 25(c) of the New Zealand Bill of Rights Act 1990, in that every person charged with an offence “has the right to be presumed innocent until proved guilty according to law.”[15]

It is clear that the right to being considered innocent until proven guilty is deeply ingrained in New Zealand’s justice system. As such, instances where this is overridden and the burden of proof shifts to the defendant is rare. In particular, reverse onus provisions include offences where: [16]

  • there is a statutory “absence of fault” defence which must be proved by the defendant on the balance of probabilities;
  • there is a statutory defence relating to an element of the offence;
  • a summary offence contains reference to a qualification, proviso or excuse covered by s67(8) Summary Proceedings Act; or
  • an indictable offence provides that a qualification, proviso, excuse or other defence may be established by the defendant.

Responses to Labour’s proposal by prominent legal practitioners and interest groups have been largely negative, with the primary concern being the threat to the fundamental presumption of innocence. Warren Brookbanks, Professor of law at the University of Auckland, pointed to the law reforms of the 1980s, which required defendants to show that they had an honest and reasonable belief of consent. This required that the defendant must have “made some inquiry as to the attitude of the other person. And if they haven’t, then they are acting unreasonably and are going to be convicted.”[17] Professor Brookbanks further expressed his concern that shifting the onus onto defendants would make it even more difficult for a defendant to prove the act was consensual, given that “[u]sually in these cases, there are no witnesses. Who do you believe?”[18] Tony Bouchier, the president of the Criminal Bar Association has also expressed deep misgivings at the proposal, labelling the presumption of innocence as an “absolute, almost constitutional” right. Bouchier believes that the policy would “swing the system in favour of the prosecution and might lead to more innocent people being sent to prison.”[19]

However, Professor Brookbanks’ argument that shifting the burden would  “make it even more difficult for a defendant to prove the act was consensual” is problematic in suggesting that reversing the burden would suddenly make it ‘easy’ for the prosecution to prove rape.[20] That these cases often come down to the clash of one person’s word against another is a far more significant barrier to successful prosecution, producing an acrimonious, often potentially re-traumatising, experience in the court room. It is true that women making rape complaints — and it is overwhelmingly women who are raped —are no longer subject to having their credibility and character assassinated in the witness box as they once were. But so long as a woman cannot make a rape accusation without her integrity being called into question that she has exaggerated or lied in making her claim, that barrier remains.

Besides the public and professional opposition to the proposal, Labour’s failure to win the national election means the policy will not be implemented for now. The party has been relatively silent about the burden of proof proposal under Andrew Little’s leadership despite his being the spokesperson originally responsible for the policy, but they have continued to advocate for a radical change of the criminal justice system.[21] The current Justice Minister, Amy Adams, has rejected the suggestion of shifting the burden of proof, noting that the cause of upholding the rights of victims must be balanced with ensuring the fundamental right of defendants to a fair trial. [22] Instead, the current Government has asked the Law Commission to revisit its previous work on alternative pre-trial and trial processes.  The Commission’s 2012 report on possible reforms included suggestions for a specialist sexual violence court, as well as specifically trained judges and professionals, with an emphasis on the importance of protecting victims and complainants from further traumatisation.[23] Therefore, any reform under the current Government may well take the form of these proposals.

Looking to the contrast between the large number of reports of violence and the small number of cases that make it to court — and the even smaller number of cases successfully prosecuted — it is hard to dispute that our justice system is failing sexual violence victims[24] The adversarial system of the courts work against the victim rather than supporting them. Though changing the burden of proof is too much of a breach of the defendant’s right to be presumed innocent, the status quo is failing those it is meant to protect — it must change. The most recent proposals from both major parties to incorporate elements of an inquisitorial judicial system into our current adversarial structure appear to be the most beneficial approach open to us. This would make the experience of victims less traumatising whilst keeping the rights of defendants intact.[25]

[1] Derek Cheng “Rape accused would have to prove consent under Labour plan” The New Zealand Herald (online ed, New Zealand, 8 July 2014).

[2] Andrew Little (Labour Party) “Victims should be at centre of domestic violence measures” (press release, 2014).

[3] Aimee Gulliver “Glenn Report a ‘catalogue of despair’” (16 June 2014) Stuff <www.stuff.co.nz>.

[4] Denise Wilson and Melinda Webber The People’s Report: The People’s Inquiry into Addressing Child Abuse and Domestic Violence (Glenn Inquiry, 2014) at 85.

[5] At 119.

[6] Isaac Davidson “Glenn Inquiry: Judith Collins rules out key recommendation” The New Zealand Herald (online ed, New Zealand, 17 July 2014).

[7] Little, above n 2.

[8] Cheng, above n 1.

[9] Cheng, above n 1.

[10] Little, above n 2; Law Commission Alternative pre-trial and trial processes: possible reforms (NZLC IP30, 2012).

[11] “Editorial: Glenn report’s burden of proof change a step too far” The New Zealand Herald (online ed, New Zealand, 18 July 2014).

[12] Little, above n 2.

[13] Little, above n 2.

[14] Woolmington v DPP [1935] AC 462 (HL) at 481.

[15] New Zealand Bill of Rights Act, 1990.

[16] Ministry of Justice “Section 25 Minimum standards of criminal procedure” (2004) Ministry of Justice <www.justice.govt.nz>.

[17] Derek Cheng “Rape case shakeup on cards this election” The New Zealand Herald (online ed, New Zealand, 10 July 2014).

[18] Cheng “Rape case shakeup on cards this election”.

[19] Derek Cheng (2014, July 21) “Top lawyer slams rape case reform” The New Zealand Herald (online ed, New Zealand, 21 July 2014).

[20] Little, above n 2.

[21] New Zealand Labour Party “Govt must make up for lost time on sexual violence law reform” (press release, 25 November 2015).

[22] (25 November 2014) 702 NZPD 759.

[23] Law Commission, above n 11.

[24] New Zealand Labour Party “Eliminating violence against women and children policy” (press release, 2014).

[25] Hon Amy Adams “Govt resumes sexual violence trial proceedings work” (press release, 25 November 2014).

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