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Crimes Act + Police Investigation = WTF

By   /  October 30, 2014  /  44 Comments

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The continuous insane defence of being needing to be ‘delicate’ throughout the police report is infuriating. I never thought I’d be this mad at PC-ness and talk of victims rights, but in this case I think how it’s being used to wash over legislation is a crock legally.

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Just to frame the farce that is the Roastbuster’s investigation and conclusion – here are the parts of the Crime Act http://www.legislation.govt.nz/act/public/1961/0043/latest/whole.html#DLM329057  the Roastbusters are proven to have violated – that the police (and some suspects!) themselves acknowledge occurred:

Crimes Act 1961

128A Allowing sexual activity does not amount to consent in some circumstances

4. A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.

 “Police investigating the Roast Busters scandal were shocked to learn of the amount of alcohol consumed by those involved and the group’s poor understanding of consent… the level of drunkenness described to police, including some of the group passing out, was “shocking to hear”. ”

Ummmm…..

134 Sexual conduct with young person under 16

  • (1) Every one who has sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.

(2) Every one who attempts to have sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.

(3) Every one who does an indecent act on a young person is liable to imprisonment for a term not exceeding 7 years.

(4) No person can be convicted of a charge under this section if he or she was married to the young person concerned at the time of the sexual connection or indecent act concerned.

(5) The young person in respect of whom an offence against this section was committed cannot be charged as a party to the offence if the person who committed the offence was of or over the age of 16 years when the offence was committed.

(6) In this section,—

  • (a) young person means a person under the age of 16 years; and

  • (b) doing an indecent act on a young person includes indecently assaulting the young person.

Consent was therefore impossible. All suspects were over 16 years of age. Man admits sex with child under 16. Man guilty. But oh no, not in this case – a suspect can and did admit to having sex with 10 (and his mates with 20) girls – but because the girl doesn’t go through with a statement it’s not rape? And if the suspect states they thought they got consent, it therefore was consensual? WHAAAAA????!!!!!! Does that line up with the cold fact of illegal activity above? No way.

The continuous insane defence of being needing to be ‘delicate’ throughout the police report is infuriating. I never thought I’d be this mad at PC-ness and talk of victims rights, but in this case I think how it’s being used to wash over legislation is a crock legally.

Why is it a crock?

Because actual legal reality is, that the police do NOT require the victim’s blessing to continue with an investigation and charge offenders. Particularly in cases involving minors. And as a friend said today – what about murder? Can’t get a statement signed off by a corpse! So what on earth is this defence of not having enough cooperation?

It’s nothing more than an excuse.

Am I saying that the victims shouldn’t have rights? No, absolutely they should. Which is why the police could have (instead of tip-toeing around hoping this would all go away) put significant effort into protecting them THROUGH the process. The fear of identification and bullying is very real – but can be mitigated with the correct support, with empathy, with empowerment – creating trusting relationships with the girls. What about investing in victim support of the ‘you can do this and we’ll be with you, and we will publically pounce on anyone who breaches your privacy’ type instead of so much in ‘this is why you shouldn’t go any further, you really really shouldn’t’ type? None of the alienating, wishy-washy, fear-inducing communication victims say occurred – after they either had the indignity of being ignored and forgotten when they initially reported (in whatever way) sexual assault, or who were silent and scared to speak because they knew they didn’t matter.

There are even more facepalm moments in the Clover Report. At least two persons of interest provided admissible evidence. Means nothing, apparently. And suspects were not pulled in for questioning – they were “invited” and “declined”. This boggles my mind. Since when in serial rape cases were suspects “invited” and the police sigh ‘ah well never mind, too bad’ when they say ‘nah, don’t wanna’ and close the file? This is a joke, right? This is not a justice system I and all of you would like to have faith in.

Videos and photographs of older men having sexual activity with intoxicated underage girls + admittance of it by suspects both on bragging video and to police = proof, arrest and charges. It’s really that simple.

So is the elephant in the room – the police’s lack of initial investigation. Suppose it happened this way – the way it should have. What if they did investigate when girls first notified them – searched the suspects residences and found pictures and video on their phones? Lock ‘em up and throw away the key!!!

But no.

28 pages of blah blah blah boils down to utter FAILURE from the system. It’s blindingly obvious from reading the Crimes Act that there is proof of multiple offences here. And it’s also obvious that somehow we are now in a place where our justice system’s answer to rape is basically – well they thought it was ok, so it’s ok.

That’s not ok.

It should not be up to the perpetrator to decide what consent is. It should not be up to youth to decide what consent is. The LAW decides what consent is – and all this decision does is tell young people – who still haven’t finished their brain development and don’t have a mature outlook on the world – that it’s up to them to decide what rape is.

I so desperately want this to be the last time NZ puts up with this. I want this to be the final big swing of the pendulum towards injustice for victims created by a culture of fear of false accusations. It’s gone too far. As I showed above – this system makes a farce of the Crimes Act. It’s a joke, and unfortunately the joke today is on any NZer who has been sexually assaulted – the 99%   of survivors who get no justice. 

It’s past time to turn the tide on this insanity and get to a system that actually upholds justice.

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About the author

Rachael Goldsmith (B.App.Med.Arts – Journalism, Nat.Dip – Human Resources, Nat.Cert – Social Services) is a writer & social justice activist from Invercargill, Southland.

44 Comments

  1. Dorothy Bulling says:

    You need to see that maybe this hogwash should read, ‘we won’t prosecute, because too many of those involved are from prominent Auckland families and they have enough money to hire smart lawyers to get them off the charges, and ee can’t fight that. Just think about ‘hiring a top lawyer when your son’s school doesn’t like his haircut.’ With that sort of attitude look what the victims are up against. But the other issue here is what were the teenagers parents doing when all this was allowee to happen? Don’t they have some respondibility? What would you say to your child who participated in drinking orgies and the sex acts following? Whether your child is male or female you have the ultimate responsibility for such sad events.

    • I have a 20 and 12 year old boy & girl – so I have thought about this, a lot over the years. If my son was a perpetrator I would drag his butt into the police station and hand him over, telling him to ring me when it’d dawned on him what he’d done and was willing to take responsibility for it. I have been explaining consent to my son since he was little, at age appropriate levels, and also the dangers of alcohol & other drugs – with the goal of him never – EVER putting a girl or himself in this kind of situation.

    • Shrubbery says:

      There’s a reason people under the age of 16 are considered minors and treated differently by the law. Think about that for a while before you start blaming the victims and their parents.

    • Col says:

      It’s been removed for a while for obivous reasons. That was up back in the day when they posted the video that got national attention a quick search of their names and Boom. there it was. I believe that comment was “something you say often”

      It was all there last year evidence (not sure what else to call it) of bragging about underage sex. Also a crime for eighteen year olds to provide alcohol to minors there was evidence of that too. It was all made private/deleted very fast though.

      Gives lie to the myth the police had looked into the complaints in the first place. These guys were outing their victims online for the world to see cyberbullying is also a crime they look to be guilty of. I’m not trying to diminish the rapes but it’s clear these characters are getting a pass. poor and brown you get hit with whatever the police can convict you with, resisting arrest, assualting a police officer, offensive lanuage. They don’t need to prove rape there are so many other crimes right there.

      • Liberty4NZ says:

        Remember the private prosecution of John Banks, when the police wouldn’t, with the same claim of not enough evidence? It can be done with a willing law firm and a copy of the original bragging videos. We can’t give up. That’s what they want. I am not wealthy but will happily make a small contribution towards legal fees and I believe many others would too.

        • Crickey says:

          Yep, it was so strange to see a whole nation just shrug their shoulders collectively, when the police declined not to charge Banks…….then along comes this curious lone man….Mr.Mc.Cready and takes on the whole system……and wins.
          Who would have thought it eh?

    • framu says:

      actions that expose you to risk and someone committing an offence against you are two different things.

      Please dont ever lump them together as your doing the apologists work for them

      eg:

      does walking through a park at night to get home expose you to potential risk? – yes

      does that make it your fault if some one robs or rapes you? – no

      sure, teach ourselves about caution and risk evaluation, but the person who committed the offense is the sole guilty party for that offense

    • Tony S says:

      In this case I think the police were being pragmatic in that they knew they would not be able to secure a conviction without the evidence of the girls.

      If I was defence counsel, I would certainly be asking for the “victims” of the “crime” to be questioned, or at least cross examined on their statements.

      For the charge of sex with a minor, the girl would need to give evidence that the guy did indeed have sex with her.

      For the charge of no-consent due to alcohol impairment,my defence would be that the girls consented before we started drinking. Without the girl to give evidence and be cross examined on their statements, impossible to convict.

      Remember, under our adversarial system someone is innocent until proven guilty. The prosecution would have to prove the case. Videos of stupid boys bragging about something happening is not the same as it actually happening.

      • Dirk says:

        Even with your comments the crime of providing alcohol to a minor and cyber bullying are obvious. Had the perpetrators been poor they would have been charged.

        But, hey, let’s all talk about those great new flag designs! An appalling culture led by immoral monsters.

  2. whare says:

    Rape. Its ok to Rape. Police support Rape, Rapists and Rape culture. In a nutshell, that’s the clarity of the message to all women, daughters, mothers, neices, Auntys, Grandmothers…it’s ok to Rape. Police already have a history of Rape, so maybe this is also about covering their own tracks. If the system is neutered, what steps other than the common sense ones mentioned, may i take should this happen to me? If this about rich people protecting their money and reputations, what power do i have to see justice carried out for my children should this happen to them? How can i get th police to do their job?

  3. http://www.lawcom.govt.nz/sites/default/files/frrtrj_-_executive_summary_0.pdf
    Here are the recommendations from the Law Commission on sex crime investigations & prosecutions.

  4. Mike the Lefty says:

    Another example of what I said in a blog a few weeks ago. The Police no longer function primarily to investigate and solve common crime against ordinary New Zealanders. This has become a secondary function which they might get around to doing if you are lucky. Their primary function is now to silence National government critics and cover up National government corruption. Is it any wonder why so many people have so little faith in them?

    • Tonto says:

      LOL. Mike the lefty, you are hilarious. You conspiracy theorists (read: bitter Labour supporters) just make my day with your craziness.

      • Ovicula says:

        When you stop laughing, how about explaining why this case has been dropped without charges? Then we can look at the search of Hager’s house vs the lack of action against Slug Boy. After that let’s hear why media newsrooms were searched because Key couldn’t see a microphone that was in plain view. Then…….

        On second thought, don’t bother. I’d rather drive red hot nails into my eyeballs.

      • Mike the Lefty says:

        You are amused at rapists getting away with their crime because of police inaction. It says a lot about your personal values eh fella?

        • Tony S says:

          They are alleged rapists under the premise of innocent until proven guilty. If you were there and know they were rapists, then you should give your evidence to the police, it will help them with their case.

  5. adam says:

    You did call this response in a early blog Rachael as I recall. And that you felt this was on the cards. For that, I thank you, I’m still mad as all hell – but instead of getting worked up and feeling powerless – I’ve been thinking of other options.

    Private prosecution is it possible?

    Is roast busters a terrorist organisation, as it seems to have the same attitude towards women as ISIS?

    A call for an independent prosecutorial service, and that it is removed from police hands. As it can be critical of ineffective police work, removes the stench of corruption, and creates some distance from political pressure.

    I have others – but I’m sure people could add to the list of things that need to change.

    • I think calling it a terrorist organisation is going a bit far.

      • Ovicula says:

        I think that with most organisations that get labelled terrorist, the naming has gone a bit far.
        I also voted your comment down instead of up. Sorry about that.

      • Col says:

        I think terrorist is actually a fair description here. The use of violence and the threat of violence to get your way. “Go ahead call the police they can’t unrape you.” Is a direct quote off one offenders facebook page.

        By succeeding in comminting an emotionally and physically damaging act and scaring the victims into “uncooperativeness” is exactly what terrorism is.

        • Lara says:

          whoa…. one of the perps actually named what he / his mates did as rape?!?!

          reading what Beriah Hayes’ family have to say in teh MSM today they seem to think he did nothing wrong, he’s been “vindicated” and he’s innocent.

          ugh. now I need another shower.

      • One pissed of liberral says:

        How about calling it a hate crime then? Considering that we raise girls to suspect all Men of a certain age to be rapists if the conditions are right, i.e. dark walk way on the way home, drunk at a party, alone with a stranger, maybe just someone of diminished mental capacity or physical capacity etc. etc. Personally i feel that the description of terrorism is very apt. To terrorize someone so much that they do ones biding, i.e. wear a burka, don’t go out without a male chaperon, don’t have sex before the wedding lest they be accused of slutitude…..shall i continue?

        At what stage can we treat rape as the serious physical assault that it is.

        And to the posters that called for the parents of the teenagers? Are you talking about the parents of the victims or the parents of the criminals.?

  6. mary_a says:

    The disturbing outcome of the Roast Busters issue, is the fact it’s going to prevent further victims of sexual assault and rape coming forward. While from the predators’ perspective, the message here is it’s perfectly fine to sexually assault whoever is out there “asking for it” and there won’t be any consequences!

    When the law is there in place, it must be enforced to protect society against further abuse! Otherwise, what’s the alternative? The law of the jungle, when anything goes … oh wait!

  7. Lee says:

    “Police investigating the Roast Busters scandal were shocked to learn of the amount of alcohol consumed by those involved…”

    This statement by Police by must be laughed-off simply because it is such an audacious lie. The fake surprise and piety should serve (and arguably has) as an alert to the approaching defensive delusional hogwash-whitewash that will follow. If they lie about inconsequential things like being “shocked”, how can anyone think they’ll not lie about important aspects of the investigation?

  8. ann johns says:

    If anybody thinks the police actually work for the people anymore, think again. They are as corrupt as the government. Today one of them was done for dealing the very same drugs that he confiscated, and he denied, denied until he found himself in a corner, with no way out. They have now just announced to NZ that it is OK to rape girls in this country. These crimes were documented via facebook. What more proof was needed. They didn’t need the victims’ permission. The facts are that one of them was the child of a senior cop, for that reason alone, he should have been investigated thoroughly if the cops wanted us to trust them. They don’t need our trust any longer, they have the backing of the govt to behave however the hell they want. I’m starting to despise my own country.

    • Ovicula says:

      I despise what a bunch of scumbags are doing to my own country. I love my country enough to try and stop them.

  9. Jacare says:

    Instead of being a bush lawyer and pretending that you understand what you are talking about, how about getting an opinion from an actual lawyer as to whether the Police were reasonable or not?

    • Lara says:

      instead of making a mean spirited patronising comment, how about you do your own research?

      google is your friend

      https://blogs.otago.ac.nz/etc/2013/11/06/roast-busters-are-criminals-and-we-dont-need-new-laws-to-make-them-so/

      • Tony S says:

        Great work. Yep a blog is definite proof of guilt.

        The problem with internet blogs is that they are like arseholes. Everyone has one and most just talk shit.

        The blog you mention is couched with terms like “if”, “May be”. These men/boys need to be taken to court and charged. They are innocent until proven guilty. The problem in this case is going to be the proof part.

    • david says:

      It’s really interesting, and sadly an insight into the mentality of some of this blog’s readership, that a simple and reasonable observation such as this receives 9 thumbs down and no other comment.
      Meanwhile we see ardent approval for such claims as facebook posts are sufficient evidence for a prosecution, or that the police’s primary role has become one of protecting the national party, or that the police has announced that rape is okay, or that it’s an audacious lie when police say they were shocked at the amount of alcohol consumed. It’s the absurdity of comments like these that make the observations meaningless. How about asking for a clarification and more information about why any prosecutions couldn’t proceed? That would make more sense.
      The fact remains that the prosecutors had to be able to prove their case in court — it would seem more productive to establish why this was deemed impossible than to stoop to conspiracy theory histrionics.
      I don’t imagine there are many New Zealanders who are happy with the outcome of this, and it’s disturbing – to say the least – to learn that only one percent of complaints of sexual assault results in a conviction. There are clearly flaws in the legislation, the process of obtaining evidence and the judicial system which need to be examined and amended.
      But the notion that these issues can be distilled into claims that it’s because the police are corrupt or that it was just to protect wealthy families shows that some commentators thrive on selective misinformation and/or live on the margins of reality.

      • david says:

        In other words — whatever one’s bias or theories of corruption, this case is not as clear cut and obvious as some people suggest. New Zealand’s culture of teen sexuality, internationally high teen birth rate, and our culture of binge drinking, and our culture of always making someone else responsible, also need examining. As does our PC-ness which at times borders on farcical, and the way we often treat offenders as heroes and victims as a nuisance.

      • Liberty4NZ says:

        I agree that the prosecutors have to prove their case in court. The point of the article is that by the offender’s own admission, rapes occurred. There is overwhelming evidence. Did you even read the article?

        • Tony S says:

          I am sorry, but posting something on facebook by some some guy full of bravado, is to be taken with a pinch of salt.

          It is not proof of anything.

  10. reason says:

    When a power abusing government guts the recent Alcohol law review recommendations they’ve acted as roastbuster enablers.

    Alcohol is pushed and promoted at young people and especially young women.

    It is the NUMBER 1 date rape drug and our country spends approx 75 million PER WEEK on it.

    National Abuse the power of government ….. They endorse a Alcohol/booze pushing culture …… they also support rape culture.

    Actions speak louder than words and facts speak for themselves:

    NZ 2014 ….. brighter future for roastbusters and sellers of booze.

  11. weka says:

    Lots of reasons to be very angry about this situation.

    Some things that are still unclear,

    One parent of one of the girls has said that some parents of other girls wouldn’t let them make a statment. Is parental consent needed for young teens to do that?

    Likewise, is parental consent needed to interview the men/boys (have lost track of how old they all are, but I mean the younger ones)? What is the actual law in NZ with regards to questioning? I am assuming some evidence is required to compel an interview, and without that evidence an interview can only be requested. Would be good to know the actual legals on this.

    btw, I haven’t seen the police say it wasn’t rape. Malthus said she is disappointed they couldn’t bring a prosecution. I take that to mean they know that sexual assualt crimes happened, but they can’t get the evidence to prove this in court (their own fault IMO for all the reasons you state and others)

    • Barry says:

      WEKA – the point you raise about parent or caregiver involvement only goes half way – you dont say anything about their responsibility to to protect their offspring BEFORE the party. Like – “what the hell did these kids parents let them get involved in this?” – which is another way of saying “Didnt the parents of these 13 year olds know where they were? and what they were doing?. If the answer id no then they are guilty of child abuse”

      • One pissed of liberral says:

        are the parents of the boys/men that provided the alcohol to the underaged girls guilty of child abuse? are the parents of the boys that decided to get underaged girls drunk to then pack rape them are guilty of child abuse?
        are the parents of the boys/men that after they supplied alcohol to underaged girls, after they pack raped them then boasted about the facts on facebook and other social media responsible for child abuse?

  12. […] a clear analysis of the police ‘investigation’ into the roast […]

  13. Trevor Mills says:

    Yep, another politically operated cover up for the police and their balking at the judicial system. Now, had it been someone else who committed an act of rape, let’s say, Rolf Harris, the actioning would be promptly rushed into court, as has been done, and Rolf Harris has since been sentenced. Now, in the case of these two blatant little cowards, who are hiding behind the skirts of their protectors, this is becoming a charge not only of rape, but also an act of preventing the course of justice. The law is the law, designed and in place equally to serve one and all, from pauper to king. Bring these cowardice hooks to court, serve the harshest justice upon them, with added sentence for delay tactics, and stop mucking about.

  14. Liberty4NZ says:

    An open letter to all the young ladies who were victims,

    I know you feel guilt and shame. Perhaps you liked one of the boys and agreed to follow their lead because of this, like a lamb to the slaughter. You were a child. They betrayed your trust, they cruelly and sadistically violated you. They were older, more worldly and knew better. You have done nothing wrong. I’m crying as I type this. To further humiliate and degrade you they decided to publicize the abhorrent crimes they inflicted on you because then they could further enjoy the degradation of you and use shame to ensure your silence, (like all predators do). Young ladies/victims please come forward. Make your statements, there are so many on your side. Punish these men before they go on to harm others. Most adults understand exactly what has happened to you, and want Justice for you.

    Love, the sane Human Beings of New Zealand

  15. Tony S says:

    Everyone is assuming that what has been printed actually happened.

    Charles McDowell did research into rape allegations which were false. His report listed those they uncovered in declining order of appearance. “Spite or revenge” and “to compensate for feelings of guilt or shame” accounted for 40% of such allegations (Farrell, 1993, p. 325). A small percentage were attributed to “mental/emotional disorder or attempted extortion.” In all cases, then, the falsely alleging woman had any of several strong motives to lie. But, as with the S.A.I.D. syndrome, the most common motive was anger, an emotion which prompts more than a few embattled women to reach for “the ultimate weapon.” >

    You don’t think there is any desire for spite, revenge, anger, shame, guilt here?

  16. grumpystilskin says:

    What about the fact that those girls have older brothers/friends who may spot a roastbuster out on the town one night..

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