Cross-Examination: The Blight of Rape Culture on New Zealand
Content Contributor Paht Satjipanon
New Zealand is often considered a progressive country when it comes to what has been done in the field of gender equity, but the societal stigma surrounding those who are sexually assaulted still persists. According to a comparative study of 56 countries in The Lancet, New Zealand ranked third in terms of reports of sexual assault among women 15 or older.[1] The 2011 UN report on the Status of Women, meanwhile, listed New Zealand as the worst of all OECD countries when it came to sexual assault.[2]
This light-hearted treatment of sexual violence in our community was publicised in November last year when several female MPs were ordered to leave Parliament after their declarations that they had been victims of sexual assault were ruled out of order by the Speaker. Those declarations came in response to comments made about the detention of New Zealand citizens facing deportation after the Canberra government cancelled visas for those convicted of certain crimes. Key’s response after being questioned by Labour leader Andrew Little was to accuse the latter, saying “you back the rapists”.[3]
Although the majority of sexual assault cases involve the main abuser being male, it is important to note that the victims of sexual and psychological abuse from intimate partner violence consist of men as well. Police estimate that during the past five years the number of male victims of sex assault has jumped from about 480 to 710, signaling an increase of approximately 50%.[4]
Despite the increasing trend of victims finding the confidence to speak up against sexual violence, many assaults on men are still going unreported. In a public discussion document published to support Justice Minister Amy Adams' review of family violence laws, she explained the difference between the genders in terms of how they are affected by sexual violence: male victims of intimate partner violence are reluctant to report that they are living in an ongoing state of fear from the perpetrator. They also tend to report that they experience violence that is comparably less severe than in situations concerning male-on-female violence,[5] and this trend in reporting may be due to the prevalent “harden up” culture informing masculine behaviour in New Zealand.
Rape culture in New Zealand
Massey University lecturer Deborah Russell defines rape culture as an environment which tolerates, and at times, supports rape.[6] Exemplifying this, a jury in a high-profile sexual assault case has remained undecided as to whether accused rapist Scott Kuggeleijn is guilty.[7] The woman involved allegedly protested twice and made it clear she did not want to engage in intercourse.
In the same month, Austin Wilkerson was convicted of sexually assaulting an intoxicated woman. In spite of later admitting to digitally and orally penetrating her, he was no issued a prison sentence but was ordered to serve two years of work release and 20 years to life on probation.[8]
Rape culture was perhaps most recently brought to the attention of the New Zealand public when the Roastbusters scandal occurred. This case involved a group of young men who provided underage girls with alcohol, raped them, and posted about their exploits online. The failure of adequate response from the New Zealand police force has attracted widespread criticism.[9]
Legal framework in New Zealand
In the case of Woolmington v DPP, it was stated that in criminal law “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.”[5] This fundamental principle is protected in international law in section 25(c) of the New Zealand Bill of Rights Act 1990, where it is said that every person charged with an offence “has the right to be presumed innocent until proved guilty according to law.” This can make prosecuting rapists difficult, as the burden falls heavily on the victim to prove a crime occurred, in what is typically a “he said, she said” situation.
Another area of the law that would benefit from change is New Zealand’s lack of a “close-in-age” exemption. Close in age exemptions are put in place to prevent the prosecution of individuals who engage in consensual sexual activity when both participants are significantly close in age to each other, and one of the partners is just above the age of consent, whilst the other is just below it.
Attempts have been made to rectify this. In 2004, a Bill containing close-in-age exemption was introduced in New Zealand which would have permitted young people between the ages of 12 and 16 to have sex with each other so long as there was an age difference of no more than two years between them.[10] Similarly, no protections are reserved for sexual relations in which one participant is a 15 year old and the second is a 16 or 17 year old.
This leaves a gap in the law where, for example, a 15 year old is unable to legally consent to sexual activity with their 16 year old partner.
Reforms and measures taken against sexual assault in New Zealand:
A recent Law Commission submission on sexual justice reform has emphasised the legislative and operational changes around sexual assault that need to be considered. These include the establishment of a specialist sexual violence court and the adoption of an alternative process to obtain resolution and justice for sexual assault victims who do not wish to go down the route of the criminal courts.[11]
The Commission itself provided a review of trial processes in sexual violence cases and set out recommendations for change regarding how the justice system treats such violence more generally. It suggests that victims should have an implemented support system. The proposal of creating an organised body against sexual violence would assist with matters such as laying the groundwork for providing support to victims of undergoing the trial process. By establishing services and resources for victims and increasing consultation between the government and community-based providers, these initiatives would focus on carrying out research, delivering training and education programmes, and accrediting and monitoring the providers of the alternative process.
The Commission’s report points out considerations for limiting the period of time it takes for criminal proceedings involving sexual violence to get to trial. By giving judges specific training for the purpose of dealing with sexual violence cases, less traumatic methods of giving evidence at trial could be made available to complainants of sexual violence.
The initiation of a separate and specialist sexual violence court should be piloted and future consideration should be given to whether proceedings in that court should or should not be heard in front of a jury. By having a legal framework that operates entirely outside the current format of criminal trials, victims would have the opportunity to access alternative outcomes. For example, one such outcome may be requiring the perpetrator to complete a programme that addresses the harm caused by their sexual violence in addition to making reparations to the victim. If similar programmes with a focus on rehabilitation and natural justice are completed by perpetrators, those who offend in this manner may have a lower chance of re-offending.
On an international level, New Zealand has “good character” requirements which affect who is allowed to enter the country. Daryush Valizadeh, the runner of the US-based "neo-masculinist" group, Return of Kings, has publicly supported the Roast Busters’ actions, and advocates for legalising rape on private property. As a result of his violent misogynistic views, he will likely be barred from entering New Zealand.[12]
Arguably a restorative justice process with regards to instances of sexual assault needs to be implemented in University Halls. There is currently a lack of clarity as to the process of reporting a sexual assault. University students have taken things into their own hands, and have donned black clothing and commenced bake sales every Thursday as part of the Thursdays in Black movement. The goal is to raise money for rape crisis centres and domestic violence charities, as well as raising awareness about rape and violence.[13]
The harsher treatment of victims by the adversarial criminal justice system has encouraged thinking about alternative processes for dealing with sexual victimisation, and cultural awareness to fight sexual assault in New Zealand. The lackadaisical attitude towards sexual violence that is prevalent in both the media and Parliament’s treatment of it is an endemic problem, and greater clarity in both the legislation and proposed reforms will be instrumental in changing how victims are perceived and protected. We need change, and we need it now.
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[1] Carla Green “New Zealand has a dark secret, female politicians say” PRI (online ed 30 November 2015).
[2] Zoe George “Feature: Tackling rape culture in NZ” Radio New Zealand (online ed 7 December 2014).
[3]Eleanor Ainge Roy “New Zealand female MPs thrown out of parliament after disclosing sexual assaults” The Guardian (online ed 11 November 2015).
[4] Tessa Johnstone “Male sex abuse reporting soars” stuff (online ed 1 February 2014).
[5] Anna Leash “Family violence: Men are victims too” NZ Herald (online ed 10 May 2016).
[6] Zoe George “Feature: Tackling rape culture in NZ” Radio New Zealand (online ed 7 December 2014).
[7] NZ Herald “Northern Districts cricketeer's rape trial: Jury remains undecided” (online ed 2 August 2016).
[8] NZ Herald “No prison for 'entitled' student who raped intoxicated woman” (online ed 12 August 2016).
[9] The Huffington Post “Roast Busters, New Zealand ‘Teen Rape Club,’ Allegedly Preyed On Drunk, Underage Girls” (online ed 6 November 2013).
[10] Madeleine Holden “Hard cases make bad law: Why we shouldn’t rush to lower the age of consent” The Spinoff (online ed 15 April 2016).
[11] Law Commission The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes (NZLC GR-R136) at 2.
[12] Laura Walters “Pro-rape group leader could be barred from New Zealand” stuff (online ed 3 February 2016).
[13] Victoria University of Wellington “Campaign bringing issue of sexual violence to light” (online ed 7 April 2016).