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Dayna Berghan: Legal Technicalities

An Opinion Piece
Dayna Berghan
National Women's Rights Officer
New Zealand University Students Association

There has been a nervous tension in Wellington recently. It is election year for New Zealand's city Mayors. There has also been a recent emphasis on city safety issues due to eleven highly publicised rapes in the central city of Wellington over the last month. The Evening Post recently reported how two councillors stormed out of Wellington City Councils budget debate:

"The uproar came during a lengthy debate over whether the council should spend $600,000 to employ city safety officers - uniformed staff who would patrol central-city streets and report offending and suspicious activity…." One of the people to leave the debate was Councillor Goulden. "…Before leaving, he described the safer city proposals as 'pure political populist grandstanding' by the mayor and some mayoral candidates." (Evening Post June 21 2001).
At Victoria University of Wellington the Women's Collective is walking their members to their cars and liasing with campus security. The mood of Wellington's women is one of apprehension and anger. Add a recent Dominion article (June 16 2001).

The headline read "Outrage as 'rape plot' trio walk free." In London in February this year a woman was celebrating her birthday, doing as many of us would do and got drunk. She was separated from her friends and was picked up by three men in a car. The Dominion article continues:

"Then they took her to a garage where they brought condoms and drove to a back street. There as she lapsed in and out of consciousness, the men squabbled over who should take his turn next…She was rescued when a policewoman noticed the car's steamed up windows and saw the woman looking 'terrified' inside."

There was premeditation and malice to this attack. The men knew the woman was drunk and tried to cover their tracks by using condoms. At one stage there were five men overpowering one drunken woman. This is sick. But what is even sicker and an indication of the course of justice gone wrong is that the men were later released. The men denied conspiracy to rape but were found guilty and jailed. However three Appeal Court judges took exception to the expert who told the jury that the woman's ability to appreciate what was going on around her was "severely impaired" by drink.

The article read that, "The professor in psycho-pharmacology said that the woman's drunkenness would have been impossible to hide. He also said that her inability to give informed consent to sex would have been evident to any body who was with her. The judges said that the testimony crossed the line between 'appropriate and inappropriate'. They said that the trial judge should have directed the jury to decide the issue for itself and that it need not accept the expert's evidence."

I would have thought that the jury had made it's decision clear when it first convicted the three men for rape that they believed the witnesses, the evidence, the expert, the police and the woman herself. There is a lot more to a court case than just conflicting experts. I am also angry with the appeal judges for laying the blame of the rape at the woman's feet. By acquitting the three men with the dispute of the expert on her drunkenness the judges have reinforced the notion that because the woman was drunk and separated form her friends that she was to blame for the rape. I admit that her friends weren't very nice leaving her alone in such a state, but to then condone the rape by letting the three men go is truly scary. There has been no indication that the charges of rape were dropped, but that the procedure by the trial judge was flawed therefore the men get away with a heinous crime because of a technicality.

What adds insult to injury at the end of this article is the last paragraph. Norman Brennan, director of the Victims of Crime Trust was reported. "I advise any woman going out to have a few drinks to make absolutely certain that she goes home with friends, because you cannot always rely on the criminal justice to protect you." Another perfect example of sexism in society! All women going out for a few drinks should be escorted is placing the responsibility for anything happening to a woman as her fault. What were you doing unescorted on a Friday night? Would you condemn the swimmer who was bitten by the shark? After all they knew the risks of entering the water and thrashing about. This comment also reinforces the notion that these things don't happen to men. Also if you cannot rely on the criminal justice to protect you, who are you supposed to turn to?

What has been forgotten in this case is the fundamental feminist principal that no one deserves or asks to be raped. The actions of the three men were abhorrent, but the argument of a technicality to free them is disgusting. It raises questions about the criminal system and the justice system, whom is it there to protect and serve? For now the women in Wellington must continue to take matters in their own hands. The city councillors are using the technicality of city safety to be elected to Mayor, and the criminal system is using technicalities to free rapists. The losers in this technical battle are women. No freedom, no protection and no safety.

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