Posted by Blogger Name. Category:
Andrew Little
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Labour Party
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NZ Law Society
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Presumption of innocence
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Rape
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Reverse burden of proof
We asked on Saturday if it was true the Labour Party was planning to reverse the burden of proof of consent in cases of alleged rape.
This morning we have discovered that it is indeed true as Derek Cheng reports in the Herald:
The Labour Party's plan to reform the criminal justice system would mean that the accused in a rape case would have to prove consent to be found innocent -- a change it acknowledges as a monumental shift.
But Labour's justice spokesman Andrew Little said the current system is broken and in need of a major shake-up. The party favours an inquisitorial system, where a judge interviewed the alleged victim after conferring with prosecution and defence lawyers.
The policy would mean that in a rape case, if the Crown proved a sexual encounter and the identity of the defendant, it would be rape unless the defendant could prove it was consensual.
"The Crown has to prove more than just sex; the issue of consent has to be raised by the Crown, they have to prove the identity of the offender. They would have to bear that burden of proof before a switch to the defence to prove consent," Mr Little said.
He said the issue of proof would only apply where allegations of rape had been raised.
"It is pretty radical thing to say that 'all sex is rape' unless you prove consent. The reality is that in 99.9 per cent of cases, no one is being asked to prove consent."
Firstly we will make this statement; rape is abhorrent. As we have blogged previously, a close family member was a victim of rape a number of years ago, and without doubt, that reinforces our view on the horror of the crime of rape.
And whilst we agree with Andrew Little up to a point that the current system with regard to rape victims needs work, we are completely opposed to Labour's proposed solution.
Requiring those accused of rape to prove consent will be a legal minefield, and it is no surprise the Law Society is opposed; read on:
The Law Society has a strong stance on traditional principles of the legal system, including a presumption of innocence until proven guilty beyond reasonable doubt. It has argued strongly against inquisitorial systems in the past.
Mr Little said the inquisitorial system still preserved those principles because the Crown would still have to prove a number of aspects of a case before consent was explored.
"I don't accept that that is creating an offence under which the defendant is guilty until proven innocent."
He acknowledged the change would be a "huge leap".
"But when you look at the volume of sexual violence cases and the 1 per cent of cases that result in a conviction, there is something wrong with the way we are handling sexual violation cases. The circumstances may well justify doing something radically different."
In such a system, a victim would not be cross-examined by a defence lawyer.
Andrew Little is right about one thing. What he is proposing as Labour Party policy is indeed "something radically different", and it is something that is simply too radical. The presumption of innocence is a fundamental aspect of the criminal justice system, and it ought not be tampered with.
We know a number of our readers are from the legal fraternity, and we would be very interested in their views. If there is a lawyer who would be prepared to contribute a guest post, written from a legal perspective, we would be hugely grateful - feel free to e-mail us.
We commend Andrew Little for proposing something new, but his proposal goes far, far too far in dismantling a legal principle that has its origins over 1700 years ago. The prosecution must prove all aspects of a case beyond a reasonable doubt, and we can think of no good reason why this should change.
