By Sarah Shanahan

The Sexual Violence Legislation Bill, introduced in late 2019 following recommendations from the Law Commission, is currently awaiting its third and final reading. Overall, it aims to “reduce the retraumatisation victims of sexual violence may experience when they attend court and give evidence.” More specifically, it hopes to prevent common misconceptions, stereotypes and “rape myths” from being prevalent in the cross examination and decision-making process of cases involving sexual violence. Rape myths, defined as “descriptive or prescriptive beliefs about rape… that serve to deny, downplay or justify sexual violence”, are particularly harmful to victims who take the witness stand in a sexual case. They can make the complainant feel as if they are on trial, and create a “traumatic and re-victimising” court-room experience for victims of sexual violence.

To prevent this, the Bill proposes to amend several pieces of legislation that govern the current structuring of the court process: the Victim Rights Act 2002, the Criminal Procedure Act 2011, and most notably, the Evidence Act 2006. Some of the most significant proposed changes to the Evidence Act include prohibiting evidence of a victim’s sexual history or sexual disposition being admitted, extending this rule to applying in civil cases, and instructing judges to direct the jury on rape myths and misconceptions about sexual cases. 

A good start, but…

These are all steps in the right direction when it comes to making victims of sexual violence feel more comfortable and empowered to take to the witness stand without fear of intrusive or traumatic questioning during cross examination. It shows Parliament taking an active stance against harmful rape myths that dictate the narratives of sexual cases and cause further damage to victims of sexual violence. But does it actually go far enough to protect those vulnerable witnesses? More than 30 years of legislative reform in this area has yet to make a significant change, so what makes this bill any different? In an interview with the Equal Justice Project, Scott Optican, associate professor at the University of Auckland’s Law School and frequent Law Review contributor, expressed his view on the Bill: “It’s a good piece of legislation, I think it’s a good start… but do I think it can go further? Yeah absolutely.” 

One of the main areas in the Bill that could do more to protect vulnerable witnesses and victims of sexual violence, is section 44. 

Section 44: evidence of sexual experience or sexual disposition of the complainant

Optican argues there is scope for greater specificity from Parliament in relation to the amended section 44. As it currently stands, section 44(1) of the Evidence Act 2006 prevents the admission of evidence or questioning of a complainant in a sexual case about their sexual disposition or sexual experience, other than with the defendant. In the amended version of section 44, those latter exceptions will now be subject to a “super direct relevance test”, as Optican puts it. Generally, evidence must pass the relatively weak relevance test set out in section 7 of the Evidence Act in order to be admitted; it must have a “tendency to prove or disprove anything that is of consequence to the determination of the proceeding.” Under section 44(2) however, this relevance test is heightened to make it significantly harder for sexual history or sexual disposition evidence from being admitted. Under the new section 44(2), it must be “of such direct relevance to facts in issue”, or be “contrary to the interests of justice to exclude it.”

These protections for witnesses are also not limited to criminal cases. Following recommendations made by the Law Commission, section 44 now also applies in “civil contexts where the nature of the lawsuits can involve sexual history evidence for claims in which sexual history evidence becomes relevant”, says Optican. It must be noted this provision does not currently extend to non-sexual cases, such as the Grace Millane murder case, wherein evidence of Millane’s interest in bondage and sadomasochism was relied heavily upon by the defence. As Optican puts it, “the Bill doesn’t sweep that broadly but that’s another discussion one could have”. 

Nonetheless, section 44 is a promising step towards preventing harmful rape myths from influencing court procedure in criminal cases of a sexual nature. Such myths that are commonly perpetuated within the judicial process include the wrongful idea that if a complainant has had consensual sex with the defendant in the past, they must have consented in the present case, or that if a complainant partakes in BDSM they must always consent to violent sex.

So what is sexual disposition or sexual history evidence? 

What the Bill fails to do is actually spell out what does or does not count as “sexual disposition” or “sexual history evidence”. Nor does it clarify what the actual categories of super direct relevance are in order to satisfy the section 44 test. Many have suggested a more granular approach to this provision, as opposed to the generic stance section 44 takes. None have done so more fervently than University of Canterbury Law Professor Elizabeth McDonald. In her book, Rape Myths as Barriers to Fair Trial Process, McDonald identifies several examples of sexual disposition evidence and how each are harmful in court proceedings. These include the use of sex toys and devices, choice of contraception, and flirtatious behaviour by the complainant. Based on her extensive and dedicated research, McDonald suggests these specific examples—amongst others—should be specifically excluded by statute. Omitting this level of detail and specificity effectively leaves it up to the discretion of individual judges and juries to determine what comes under this provision themselves, as opposed to relying on guidance from a specified list from Parliament.

So why has Parliament left section 44 so broad? According to Optican, it has to do with how Parliament deals with evidence questions in general: “they tend to think the way evidence law works is you give a broad base discretion with some guidance to judges and you let them work out the details on a case by case basis”. And yet, working on these cases with a lack of guidance, on a case by case basis, is exactly when rape myths, stereotypes and misconceptions can creep in, “both in terms of what the lawyers are permitted to argue, what the judges are allowing, and what goes to the jury”. This is precisely why there needs to be more specific instruction from Parliament that sets out the actual scope and meaning of “sexual disposition” and “sexual history” evidence under section 44. 

Section 126A: judicial direction about misconceptions arising in sexual cases

Another amendment in the Sexual Violence Legislation Bill that shows Parliament taking a step in the right direction—but one that perhaps will not have as much impact as it could—is section 126A. This new provision is an instruction for judges to direct juries as to relevant misconceptions that arise in sexual cases. Luckily, this provision (unlike section 44) lists a few common examples, such as the myth that “sexual offending always involves force or the infliction of physical injuries”, or that a complainant is less credible or more likely to have consented based on how they are dressed.  Optican observes this is “the first time we’ve ever had this kind of direction from Parliament for judges to subconsciously take on these myths and stereotypes as a matter of jury instruction”. If utilised correctly, it could “really cause jurors to rethink any stereotyped or misconceived views they have about the nature of sexual assault and sexual assault complainants” which “might cause them to make very different decisions, or at least think carefully about the decisions they are making as to the weight and sufficiency of evidence”.

But how much impact will this actually have? If biases and stereotypes are so inherently subjective and often ingrained into one’s ideology, will telling jury members to simply put them aside actually filter out those biases? “Who knows?”, says Optican, but if it at least has the effect of bringing those biases, myths and stereotypes to light, then “it’s better than nothing”. 

Again, it must be asked: can we go further to ensure the protection of victims of sexual violence and empower them to take to the witness stand? Perhaps action could be taken outside of the court room itself. Optican notes there have been proposals for a “whole jury education function”. This might involve providing jurors with information prior to jury selection about “sexual violence and sexual assault cases by way of brochure or video presentation”. Judges also need to be educated of course, and attempts to do so have been made through legal academics running judicial education programmes and conferences. This is especially crucial if provisions like section 44 are to be left as broad directions rather than specific instructions. 

Conclusion

The Sexual Violence Legislation Bill is most certainly an important step in the right direction when it comes to protecting victims of sexual violence from intrusive, embarrassing and traumatising questions on the witness stand. However, in its current form there is still potential for harmful rape myths, stereotypes and misconceptions to seep back into the court process. Parliament must take a bolder stance against the retraumatisation of victims of sexual violence by providing greater specificity in what comes under the definitions of “sexual history” and “sexual disposition” evidence. There could also be greater action taken in the stages before the victim even reaches the witness stand, through educating the public and judicial actors of their biases and misconceived views surrounding sexual assault and sexual assault victims, and how to combat them. If not, we could be risking yet another example of legislative reform that has yet to make a significant or real impact on the experience that victims of sexual violence have on the witness stand. 

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