Gordon Campbell on the handling of sexual assault complaints

In New Zealand, only four out of ten sexual assault cases that are taken to court result in a conviction.

This is a global problem. Everywhere, sexual assaults are being under-reported, under-prosecuted and under-convicted. Unfortunately, evidence from Britain has emerged in the past week to show that the British Police have been responding to this situation in the worst possible way. In an effort to make the conviction rates look better, the Police in Britain and Wales have been following a policy of sending a lower proportion of them to trial:

Rape prosecutions in England and Wales have fallen to their lowest rate in more than five years, the Guardian can reveal. Figures show just over a third of the 2,310 rape cases referred to the Crown Prosecution Service (CPS) between April and September last year resulted in charges being brought. The rate for the full year in 2013-14 was 62%.

The British Police seem to be actively second-guessing how jurors may react to the evidence, and are declining to prosecute a higher ratio of cases:

The new figures reveal a growing proportion of cases have been “administratively finalised”, meaning suspects are not charged following a review of the case paperwork. Almost a quarter of all cases were administratively finalised in the first six months of 2018-19, compared with just 6% five years ago.

An explicit policy seems to be being followed by the British Police, in order to filter out the ‘weak’ cases and thereby juice the statistics on prosecutions:

One prosecutor… claimed staff were told: “If we took 350 weak cases out of the system, our conviction rate goes up to 61%.” According to the source, prosecutors were told the CPS “should be winning more trials than we are losing”, and this could be achieved with “a touch on the tiller” when charging decisions were made.

This second-guessing is not simply because juries are assumed to be likely to blame the female rape victims (via the “they were asking for it” syndrome) if they had been drinking beforehand, or wearing revealing clothing. The persistence of these myths and stereotypes continues to be a barrier in attaining convictions. In addition though, British juries also seem to be significantly reluctant to impose a rape conviction on young men on the threshold of their adult lives:

According to statistics, men aged 18 to 24 in England and Wales are consistently less likely to be found guilty than older men on trial…..The conviction rate last year in rape only trials involving 18- to 24-year-old men was 32% – the lowest of any age group. The number of successful prosecutions against men aged 25-59 was much higher – at 46 %.

The effects on their female victims, who are also on the threshold of their adult lives, do not seem to figure in the jury calculations.

In New Zealand

For years, there has been talk – by both major political parties – of reducing the role that the usual adversarial court procedures play in sexual assault cases, and taking the verdicts out of the hands of juries altogether. Sexual violence survivor advocate Louise Nicholas has called for New Zealand to abandon the "broken" adversarial court system, and to utilise an inquisitorial system instead, whereby evidence is heard before a judge and two lay people, with no jury involved. A pilot programme along those lines has been put in place in Auckland and Whangarei, and academic research has been initiated into its effectiveness:

Elisabeth McDonald of the University of Canterbury, assisted by Paulette Benton-Greig of the University of Waikato, will compare procedures used in adult acquaintance rape cases in the pilot courts with a group of similar cases in non-specialist courts.

The study will review at least 10 cases from the pilot sexual violence courts in Auckland and Whangarei. The research is supported by Chief District Court Judge Jan-Marie Doogue who, in a recent radio interview, said case processing times in the pilot courts had halved from 18-24 months to around nine months. Judge Doogue added that, anecdotally, lawyers were treating complainants more respectfully in the pilot courts while also robustly defending their clients.

Beforehand, a law change would be required for the pilot system was ever to become mandatory, nationwide. A cross-party consensus for doing so may already exist, given the prior enthusiasm of former Justice Minister Amy Adams for the pilot.

Judging by the latest NZ statistics on reported sexual assault, the need to make the justice system more responsive to victims (and less traumatic for them) is obvious. There is persistent evidence of Police failings in pursuing complaints. According to the latest Ministry of Justice annual data tables charges were laid in 1,271 sexual assaults involving adult women (16 and over) and 526 resulted in a conviction, at a conviction rate of only 41.38%. Needless to say, this is just the tip of the iceberg.

The number of (a) unreported sexual assaults and (b) reported assaults where charges were not laid is far higher than those 1,271 brought before the courts. In 2018, a major NZ Herald investigation of unreported sexual assault cases pointed out the inadequacies of the justice system:

According to current police data analysed by the Herald, as of 2016 up to 80 per cent of reported aggravated sexual assaults go unresolved. For the crime "male rapes female 16 and over", that number is even higher, at 85 per cent. Rape cases are four times less likely to go to court in comparison with other types of physical assault, where only 24 per cent of offences are unresolved.

The NZ Herald investigation also canvassed the historical misreporting of sexual assaults, and the recent spike in the prevalence of such attacks:

Official statistics say the rate of unresolved violent sex offences is higher now than at any time since records began. For most of the 1990s, and early 2000s, the unresolved rate hovered around 55 per cent. But after 2007 the rate began to climb and climb,….On the face of it, one could assume the driver behind the spike in unresolved cases was the overall increase in reporting rates. Data shows reporting has also climbed steadily since last decade. But while more reporting might account for some of the upward swing in unresolved cases, it doesn't tally with such a sharp, rapid change. Instead, the more likely explanation is that the true rate has simply been misreported all along.

Privacy issues

The privacy implications for victims who do report sexual assaults are only just becoming recognised. In addition to the existing hurdles, those who lay a criminal complaint of sexual assault now face the prospect – at the very least - of surrendering their phones to defence lawyers looking for photos and text evidence of sexualised content and behaviours.

In Britain again, the exposure to digital searches varies from region to region, but it can be extensive:

In some areas, complainants are being asked to disclose health, school and college records, counselling notes and all data from their electronic devices, documents obtained under freedom of information requests show. In London, the Metropolitan police request access to social media, web browsing activity and content, instant messages, location data, emails, deleted data, images, videos, audio files, apps, contacts, documents, MMS and SMS messages – which can be kept for up to 100 years. The information provided can then be disclosed to the Crown Prosecution Service and the defence…

The national police lead on sexual offences has said forces are “massively struggling” to cope with the volume of digital data available in rape trials.

Footnote: On a final privacy point... given the nature of rape complaints, a question-mark exists over the retention of DNA forensic evidence, which – judging by anecdotal accounts – seems to be being destroyed at the sole discretion of the Police investigator involved, if charges are not pursued within a relatively short period of time.

Given that (a) victims may need quite a long time to fully consider whether they wish to put themselves through the trauma of the court procedures and (b) the likelihood of serial offences being committed by the perpetrators, the ideal policy should surely lean towards DNA retention. At the very least, the victim should repeatedly be given the opportunity to waive her privacy rights over the interim retention of this crucial evidence – for a year at least - pending her final decision about whether or not to proceed with the complaint.

Correction: If the pilot study was to be extended nationwide, it would not require legislative change, since its current innovations fit within the existing court framework. However, if the pilot’s apparent success were to be treated as a potential springboard for pursuing more substantive change - from an adversarial to an inquisitorial approach to sexual assault cases - a law change would then be needed.

As former Law Commission president Sir Grant Hammond had said back in 2012: “We have recommended that the court first be trialled as a pilot in one or more District Courts, with subsequent consideration given to whether it should be legislated as a permanent division of the District Court after two years’ operation.”

Ticket scalping

Earlier this week, the government announced its intention to tackle the problem of ticket scalping. Some people may have wondered why this form of exorbitant profit – taking is being singled out for regulation while the Aussie banks continue to run riot. Others have wondered why the market – which we otherwise worship – shouldn’t be left to its own devices when it comes to ticket prices for sporting/cultural events. Weighing one’s FOMO against the price being demanded by the scalpers should – arguably – be an individual decision.

Still, even if this is an odd place to start, its good to see some consumer protections being extended. If we want to know what a ticket scalping regulatory system looks like, we need only look at Queensland, never previously known to be a hotbed of regulatory zeal. Yet it passed its rules on ticket scalping – which sound remarkably like what New Zealand now has in mind - nearly 13 years ago. You can read the Queensland rules here:

Here’s the gist of them. The Queensland rules include a stipulated commencement date; a capped margin of 10% between the initial ticket price, and the price being asked by the scalpers; a penalty regime for the scalpers and a lesser one for the buyers if the 10% cap is exceeded; a requirement for the scalper to inform the buyer of the original price; a list of the ticket venues covered by the legislation; and a provision that ensures the rules and penalties apply even when the tickets are purchased offshore, or in Queensland’s case, out of state.

Our regime will end up looking very much this one, and it is likely to proceed through Parliament. Major concert promoters like Brent Eccles have come out in the past for action against scalpers.

Ideas being considered are ensuring fans have photo ID matching the name on the tickets, having to swipe a credit or debit card at the door, and creating individualised tickets.

And also against Viagogo in particular.

Groups including New Zealand Rugby, Eventfinda, Ticketmaster, and iTicket have held a meeting in Auckland earlier this year to discuss shared steps in combatting reselling issues.

Disturbing things

Billie Eilish’s “Bury a Friend” hit single rips off the Doors’ “People Are Strange” and the performance and lyrics are pretty interesting. Matthew Perpetua has described it as Marilyn Manson reconfigured into teen pop, and he’s dead right about the song’s inventive imagining of the “monster” of self-sabotaging anxiety as a being that lives apart from one’s own consciousness. In that respect its less like Marilyn Manson and more like the classic horror film Possession - in which Isabelle Adjani memorably transformed her sexual jealousy, rage and anxiety into a monstrous octopus thingy that also lived outside herself.

Here’s Billie Eilish

And if you're faint-hearted, maybe you should best avoid this clip of what happens to Adjani… it is incredible, extreme acting though. One of a kind film, too. You have been warned. I often wonder what young Sam Neill felt about getting himself involved so early in his career, in this kind of European art film madness:

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