GUEST BLOG: Professor Felicity Goodyear-Smith – Faulty assumptions underpin Sexual Violence Bill

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The Sexual Violence Bill, currently before Parliament, looks to increase convictions by effectively revoking the defendant’s right to silence, and prohibiting types of evidence tending to indicate innocence. As an academic, qualified forensic physician, and expert witness in sexual cases (for both sides), I am concerned by the rationale for this bill.

It is claimed that the present ‘shockingly low’ conviction rate makes this bill necessary, but what is the evidence for this? The 2019 Justice Ministry ‘Attrition and Progression Report’ appears to be a main source.

This report says that only 11% of “perpetrators” who are reported to the Police by “victims” are convicted, but is based on the erroneous assumption that all allegations are valid. Figures for these “victimisations” include all cases in which the police were unable to act (for example no perpetrator was identified or insufficient evidence to prosecute), but absurdly also those which the police deemed actually “not to be a crime” and those where the accuser recanted. Even verdicts of not guilty are included, where juries had actually found police allegations to be unsubstantiated. The report therefore flies in the face of the presumption of innocence (a basic tenet of justice), not to mention good science.

Another incongruity is the purportedly ‘low’ conviction rate for cases that do make it to court. However, 2020 conviction rates of 39% for sexual violation and 50% for attempted sexual violation are not meagre when viewed against rates for some other violent crimes such as abductions and kidnapping (35%), aggravated robbery (41%), attempted murder (29%) and at the top, murder (56%). In no other crime is undermining defendants’ trial rights proposed to increase conviction rates.

Sexual offences occur all too often and cause significant harm and suffering. However, so do false allegations, resulting in huge distress and damage to the accused and their whanau. Thecourt experience can be deeply traumatic for both complainants and defendants. Both should be treated equally without prejudgment, and with compassion and respect.

Some false accusations are made knowingly and deliberately, for a variety of reasons including material gain, revenge, unrequited love, as alibi, mental disturbance, or seeking sympathy and attention. Other wrongful allegations can be truly inadvertent – from a misunderstanding or misinterpretation of an event, mistaken identity regarding a perpetrator, or distortions in recall of an event over time. Memory research shows how people may sincerely come to believe something happened that has not. Further, an allegation may be partially true, but some elements may have become changed or embellished, either deliberately or from honest mistake.

So complainants may be telling the truth, but they may also be lying or mistaken, with no way for us to tell the difference. They should neither be initially believed nor disbelieved – until a jury deliberates at trial – a courtesy we should also extend to the accused. Ideological belief should not replace forensic examination of evidence. Investigators must approach each allegation from a neutral stance of ‘Here is an allegation – what evidence is there to confirm or refute?’ We can never determine how many allegations are false, and often there is reasonable doubt, meaning it is of course unsafe to convict, and some guilty may go free – being the price we pay for a fair and just system.

There are some data around false convictions. Robust statistical analysis of post-conviction DNA testing in Virginia, United States, found that 8-15% were factually innocent. Although 29%t of the Virginian population is African American, 60% of those convicted were of this ethnicity. Similarly in New Zealand, 16.5% of our population but 32% of all sexual offence convictions are Māori. A law that prevents accused defending themselves must further disadvantage innocent, but poorly-resourced Māori, potentially worsening this inequity gap.

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I have given expert evidence for both prosecution and defence, and I have published widely in this area. From 1994 until 1999 I led Casualties of Sexual Allegations, a national organisation which documented hundreds of false allegation cases, and supported the accused and their families through their harrowing experiences.

Like other citizens, I want sex offenders to be held accountable for their actions. However, this must not be at the price of innocent people wrongfully charged and convicted.

Professor Goodyear-Smith (MBChB, MD, FRNZCGP (Dist), FFFLM (RCP)) holds the Goodfellow Postgraduate Chair, Faculty of Medical and Health Sciences, University of Auckland

 

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26 COMMENTS

  1. Hmmm I was expecting some ideological lunacy of the type that often pops up on this page but instead I got a well reasoned and thoughtful article. Thanks!

    (Apparently all men aren’t rapists! Who’d have thought?)

  2. There’s also the fact that the good doctor had to say an of this. Isn’t The Greens supposed yo be evidence based??? SMH. Jan Logie isn’t a child. MPs don’t get to make mistakes this big. The only ones I’d keep is Chloe, Genter, Tuiono and Menéndez.

  3. Thanks for drawing attention to this problem Felicity. This bill is another shocker from our LINO-Greens government – “hate speech” legislation, He Puapua, and now Jan Logie is on a crusade to get more men convicted of rape.

    • You leave He Puapua out of it. I think constitutional reform is as important as climate change and I’ll have them how ever I can.

  4. My Chinese father-in-law lives with us.
    Born in 1943 he lived through events such as ‘The Great Leap Forward’. ‘The Anti-Rightist campaign’ and the ‘Great Proletarian Cultural Revolution’.
    When he reached management level at the steel plant he worked in he was told that his department had not reported a single counter-revolutionary.
    But according to Party headquarters there should be at least three counter-revolutionaries per one hundred workers.
    Therefore if he had not found any counter-revolutionaries he must be(a) lax in supervision and better increase vigilance or (b) protecting counter-revolutionaries and class enemies and therefore one of their number.
    I expect the imminent condemnation of Professor Goodyear-Smith followed by her removal from any position of influence.
    We lack the legislation to have her tried in a ‘People’s Court’ then sent to a labour camp but I am certain that this is only a matter of time as we further imitate the model of our Chinese overlords.

  5. Thank you Prof Goodyear Smith for your reasoning. A lifetime of watching unintended consequences whilst trying to do good proves your point: be careful of what you wish for. And heed long standing principles such as the right to the presumption of innonence.

    • From that link:
      “We are not [just] seeing more violence, but more brutal violence, sexual violence, stabbings, strangulations,” said Shine acting general manager Sally Ward.

      “Other services have struck a similar pattern to us – an increase in the number of women coming to us for help, and increase in the levels of violence being used against them.”

      Advocate team manager Debbs Murray said the severity of the violence was the worst she’d seen in her almost 18 years on the frontline.

      She said even the sexual violence was becoming more brutal – with women being more severely beaten and strangled alongside being raped and violated.

      “The hospital referrals coming to us are really badly beaten and presenting with very serious injuries,” she explained.

  6. Oh look a woman says what many men think (use to defend their or other mens bad behaviour) -women are liars or teases and all the men pile in to congratulate her for right thinking

    • You and I aren’t going to get along. It is my goal that people like you stay well clear of any legislative change.

    • You seem to be overreacting to what is a sensible article. I think that the world would be a better place if some men had had a rubber ring put on the offending member but the innocent should not be condemned for the actions of those who do wrong. Unfortunately truth is not exclusive to any particular gender so reliable evidence & studying all the information available is necessary before sound decisions can be made, having laws that would restrict that process is a disaster waiting to happen.

      • Well said. The issue of violence and sexual violence is a human issue, and facts established and opinion sought before judgement based on madness prevails

    • Felicity Goodyear Smith has been fighting against what was once the sexual abuse industry for decades, she was even brave enough to raise her head above the parapet of the daycare and child sexual abuse hysteria of the late eighties that ensnared Peter Ellis.
      Her testimony also enabled another falsely convicted man, George Gwazi, (initially convicted courtesy of the efforts of Brent Stanaway, the very same Crown prosecutor who stitched Ellis up) obtain his freedom on a retrial.
      The current bill is a disturbing indicator the the sexual abuse industry might be stirring in its nest, wanting a re-run of the string of unjust convictions it fomented three decades ago.

        • Thanks Richard. Small correction. George Gwaze was never convicted. He was acquitted twice (the Crown appealed his first acquittal).

          • “(the Crown appealed his first acquittal).”

            Which was astonishing enough on its face. The case should never had even made it to its first trial.
            (+ thank you for the further correction)

            • Great work, Felicity! I have been hugely disappointed of late with some fellow members of NZ Skeptics and Humanists who just don’t get it. In fact, whenever I attempt to mention the (British? English?) Home Office and US FBI big studies on rape complaints, these people just walk away from me and refuse to talk any further in the matter. Both studies found independently that 8% of rape complaints made to police turn out to be almost certainly false (wrong ID or no crime or lying). I did give a talk to Skeptics on the Peter Ellis case, and that went OK. However I didn’t stray into this very closely related topic. I should have I think.
              Btw great to see you are still active, Richard. There is probably more activism needed today…

  7. Incredible piece. Well done Felicity and well done Martyn for keeping the fight going on this important issue.

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