The Sexual Violence Bill now before Parliament is a travesty that strengthens the already strong arm of the state and subverts a central tenet of our legal system – the presumption of innocence. The bill’s aims are political: to appease rape activists by softening the trial process for complainants and to send more “perpetrators” to prison by making cases harder to defend. The proposed changes to our law are so pernicious that most defence trial lawyers and some prosecution lawyers fiercely oppose them. The activists promoting the bill peddle the lie, based on unscientific statistics, that false sexual allegations are so uncommon that we can assume all sexual defendants are guilty.
Sexual crime has devastating effects, and it was too often ignored in the past. However, the bill bluntly overcompensates for this. I have defended many clients on sexual charges and have seen at first hand innocent men put through unbearable anguish. The number of false sexual allegations is hard to determine, but my
experience convinces me it is far higher than usually acknowledged. Any lawyer familiar with such cases can only laugh at the fanciful “one percent” false allegation figure offered by false-allegation denialists, such as was recently reported in a Stuff article.
The Ministry of Justice, its minister and the government ‘Establishment’ generally, choose to ignore any discussion of false allegations. No one in the mainstream media – and almost no one in the police – pays any attention to the plight of the falsely accused and lenient treatment of false accusers.
A rare example of one false accuser being called to ‘account’ – in a jarringly light- handed way – is demonstrated by a case in which I was recently involved. My client, a migrant taxi driver on a temporary visa, faced a rape accusation from a passenger. The police immediately charged the driver, who desperately pleaded with the police to look at the taxicam footage. Fortunately, the police eventually did – but only after six weeks, by which time the driver had lost his job and endured terrible stress. Luckily intact, the footage made clear that the complainant had made it all up. Of course, had the footage been lost he could have expected to be charged and very possibly convicted on the grossly dishonest, malicious and
cruel allegation of the complainant. His aspirations would have been destroyed by a rape conviction, he would have been jailed and then deported with no right to return here. No doubt he would have also become a pariah once in his home country.
So what happened to the lying complainant? The appropriately-correct charge for her should have been attempting to pervert the course of justice, which carries up to seven years imprisonment. Instead, the police laid the minor charge of making a false allegation, punishable by up to three months imprisonment, which ended up in her being discharged without conviction (meaning no criminal record) and given name suppression – all of which means her next poor victim will have a hard time discovering that she has done it all before. For her therefore, there was no trial, no punishment, no real cost and no loss of reputation. High stakes for him, but no stakes for her.
This is depressingly typical; false accusers almost always face no consequences even in cases so strong that any jury would convict them. Conversely, after aman’s trial facing a false allegation, while the complainant resumes normal life the (hopefully acquitted) defendant struggles to retrieve his reputation, mend his
mental health and meet the enormous financial burden that successfully defending these cases typically requires.
The bill assumes the way the legal system works for sexual cases needs to be overhauled, but the system itself is already fit for purpose. What should change is that the police need to do their job; to investigate allegations promptly, thoroughly and objectively, rather than follow their now normal procedure – directed from Wellington – of automatically charging on practically any complaint. The lazy police cliché line of ‘just let the court decide’ is really a cop-out that absolves the police from their traditional responsibility for finding out what happened and then exercising real discretion to charge or not – before any accusation leads to an expensive and stressful trial. The result in too many cases is that jurors acquit in ten minutes and wonder how it was possible for such a flimsy case to have come so far. Some police officers are perceptive enough to see these flaws but their hands are tied by the directions given on charging in sexual complaint cases, those directions being the default position and the current climate is so attuned to delivering more convictions that only the bravest will talk about it openly.
Apart from proper police investigation, another way to stop such vexatious sexual accusations coming to court would be to routinely prosecute false accusers as a disincentive to liars and fantasists – with actual charges and sentences that reflect the devastation they cause in the lives of their victims. Here they tend to be forgiven out of vague “public interest” because the police, who aren’t psychologists, decide they have “issues”. In the United Kingdom however, around 25 of the worst false allegation offenders are given jail sentences every year. In over 30 years in criminal law practice in this country, I have not heard of any of the women who have made false allegations being sentenced to prison.
The Sexual Violence Bill addresses none of this, of course. It is a blunt ideological instrument designed to put more men in jail by obstructing their legitimate defence. The first ‘headline’ clause in the bill will prima face prohibit contextual evidence consistent with innocence. Secondly and even more sinister is the clause that would require in practically every case, a defence lawyer to cross-examine the complainant months (or years) before trial – long before his lawyer has unearthed the facts that would enable competent defence. Another dreadful by-product of this clause is that the prosecution and its witnesses will thus have an enormously lengthy opportunity to ‘fix’ weaknesses in their case, the defence having been
forced to give notice of those weaknesses – a grave breach of the defendant’s right to silence.
Our criminal justice system is a collection of irreducible rights, designed to avoid convictions of the innocent. And it should never be corrupted to achieve the political purpose of increasing conviction statistics. The Sexual Violence Bill will certainly lock up more “perpetrators”, by allowing even more unjustified trials and by jailing even more innocent men. Parliament should vote it down.
Marie Dyhrberg QC is president of the Auckland District Law Society
An excellent post. Thanks.
This is hardly surprising considering it comes from the left, which has been pushing the “all men are rapists” meme for a couple of decades.
How do you get every MP to read this article? Because they really should.
An amazing piece of writing. And so very true. I believe that not only do false and malicious rape accusers face no penalty, but are immediately rewarded monetarily, granted name suppression, ‘victim’ support and counselling all at taxpayer cost.
And no evidence is allowed to be presented in court of their prior promiscuity and/or devious character. Oh ho! A nice way to ‘earn’ a tidy sum and/or get rid of a man one has a grudge against. Hence the adage as old as time, ‘There is no fury like a woman scorned.’ Thank you Marie Dyhrberg QC for pointing out the dreadful discrepancy that already exists in the NZ justice system and heaven forbid any more weight added to it.
New Zealand needs more legal minds like you, Marie.
A Guardian guarding the Guardians!
New Zealand needs Police to do their job thoroughly without agenda. To consider all the evidence and act accordingly [charge or dismiss] at the outset.
Has anyone noticed that the presumption of innocence is being constantly eroded away?
This is true of both viligante justice by mobs of social media devotees and by government departments.
Admittedly unrelated to rape is this:
I have regular disputes with IRD and in the past I told them, ‘if you believe I owe you money take me to court and bloody well prove it.’ they went away and left me alone.
Several years ago the same thing happened and when I challenged the IRD the response was, ‘No, we do not have to. We can just take the money from your bank account.’
I was astonished to find that IRD no longer has to prosecute people. It is up to me to hire a lawyer and prove that I do not owe them money.
In my case I proved that I did not owe them money and the judge rebuked them for pursuing me( water off a duck’s back to those bastards) but the time and worry involved takes its toll.
This is also true of MSD who cuts people’s benefit payments without giving them a chance to prove their innocence.
There was a great article written in the Chch Press yesterday with the same message by Samara Taghavi. Her message was that this bill will lead to many more Maori going to prison. She cannot understand why the strong Maori members of this Labour Government and even the 2 Maori Party mambers are allowing it to go forward with no comment.
This makes for spine-chilling reading! The falsely accused victims of these cases are as innocent as you and I and our friends and family. Our legal system is not capable of protecting us. Very scary. “There but for the grace of God go us!”. Thank you for such a balanced, informative piece of writing Marie.
We have a family friend who, similarly to Marie’s taxi driver client, is the “guilty” accused victim of this corrupt broken, judicial system. Blatant corruption and manipulation has meant that crucial evidence that would prove our friend’s innocence, has been suppressed. Police who were witnesses to the case are muffled and choose to turn a blind eye … so much for feeling safe in NZ people. Our justice system is broken, corrupt and open to manipation by politicians.
What can we do to make the truth and Marie’s wisdom heard? We can’t stand by while innocent people and their families suffer a life behind bars and the real criminals walk free. The accused innocents are us!
We too have a very good family friend that is a victim of the broken legal system in NZ. Innocent until proven guilty is a myth in this country, a corrupt police investigation (of which NZ Police members were key witnesses, but muffled by those above), where securing a conviction against a so called ‘sex offender’ was the main goal – at the expense of the jury hearing all the facts and seeing all the evidence. Shameful.
To me the most revealing detail in this article is Dyhrberg’s exposure of the nonsensical “one percent” false allegation figure. Felicity Goodyear-Smith’s piece on Monday offered some valid stats – which you won’t read elsewhere. The mainstream media have let Logie and her minions get away with marking their own homework when it comes to data on sexual crime. The Stuff article from which the one percent figure was taken was written by Emily Brookes and attributes the figure to Kathryn McPhillips of HELP Auckland, an institution supporting victims of sexual crime. McPhillips in turn obtained it from “an informal study” done by an unnamed crime manager. Back of an envelope? Plucked out of the air? It was disgraceful journalism to report this as fact.
But there is the other side, isn’t there? Girls and women (and other sexualities) not being taken seriously, having their complaints ignored, being silenced by the system, by their shame, their concern they did it to themselves, the terrible court processes they must go through, even if they do get to court, which most don’t, the very low conviction rate. How are we to fix this so that justice prevails, Marie? Nobody wants false accusations, but nobody wants rampant sexual crime either. We have seen in recent months in the hearings of sexual abuse in state care the effects on men and women of being silenced by the system for fifty years or more, of never forgetting, suffering PTSD and mental illness, of never being believed if they did complain. While these accusations are historical, are we now saying that this doesn’t happen, it is over, or the ground has tilted towards the women so that they can complain with impunity (which is essentially what you are saying)? Well I don’t agree with that for one minute. I also don’t agree that most women who complain are making up their stories. I want all sexual abusers brought to justice, and none who are not abusers. I want victims to be empowered, not made to feel ashamed for wearing a short dress or having prior sexual relations. I don’t mind these matters being aired but I am really concerned this site is going to become even more biased against women who want equality and a good society, and for wrongs to be righted.
At what point does Marie Dyhrberg suggest that most women who complain are making up their stories? Her point is that many are dishonest, and it’s time we acknowledged that. We rightly have a natural aversion to the idea that innocent people may be punished. The police, the Ministry of Justice and the mainstream media either avoid the issue of false allegations or tell blatant lies about the figures, so this article is necessary to correct perceptions.
As the writer points out, even known false accusers are never punished, so they don’t make the news. Women’s groups use the low conviction rate for false accusations as evidence that they are rare, but all it really tells us is about charging polices. Imagine the outrage if anyone claimed that sexual crime must be rare because of the low conviction rate.
many are dishonest, and it’s time we acknowledged that.
And there you have it.
“Women” as such are apparently more prone to lying and dishonesty …
It is that underlying mythology that keeps women trapped. They are not believed. They are not even heard.
The reality is that many with vested interests need the truth to remain hidden.
Thank you so much, Liz.
So many don’t have a voice, …they are not even heard, let alone believed. Many whom I know. Some I have known since they were children – beautiful young girls, trusting, loyal, bright, and beautiful. Many whose lives and health, mental, emotional, physical and social … have been smashed. They’re unrecognisable now.
And I know older ones, who are still being abused after decades… Even as they approach the end of their destroyed lives.
And still no one listens. Or cares.
I believe it is a Rich Man’s/ Rich Woman’s problem that is being debated here and now – it is the wealth divide that is at the heart of the present discussion. Those at the bottom of the heap, as always, will pay for the transgressions, the selfishness and the cruelty of others.
+100 Liz, thank you again for balancing the pendulum. It is really awful to read this wholehearted reactionary stance taken by most of these comments here to this article.
Marie – your article is outstanding. As a young female student I apparently fit the category of being a woke university snow-flake and a rabid #Me Too campaigner. Well, I can assure you I am none of these and I am fully aware of the upsurge in false allegations of sexual assault made by, mainly women, against men.
For example, a law student friend of mine told me of a case she and some of her friends learned about through legal circles – it might even be one of your cases Marie – where a young man was accused of raping and sexually assaulting his partner of three years for the duration of their relationship. The man’s lawyer and the man used an IT expert to retrieve thousands of Face Book communications between the man and his former partner over the entire period of their relationship which proved the woman’s allegations to be all lies.
The scary thing is that the woman produced only a small handful of those messages where she and the man had argued over something – nothing to do with sexual stuff. She did this to prove her case that the young man was overbearing and therefore, according to her, did these horrible things to her. The scary thing is that there is a suggestion the cops had all the communications but did not disclose them to the lawyer. Anyway, the Crown Prosecutor lawyer withdrew all the charges so the case did not go on trial, which is good but the Police refused to prosecute the woman for lying. Apparently, she retains the status of being a victim even though she is a liar. Like your taxi-driver client and the camera evidence, thank goodness for the Face Book communications. Without them there is no doubt in my mind that in the current climate the man would have been convicted on the say-so of the woman alone and would now be in prison along with other innocent men.
Marie, you are an inspiration to me and to my friends. While I and my friends will continue to support and campaign for genuine victims of rape and sexual assault we do not support the Jan Logie driven sex bill before Parliament because as you and others make it very clear, it will put innocent people, including women, in prison.
An interesting and thoughtful post.
Perjury laws are also so seldom enforced that they may as well not exist.
Most court cases are simply lying competitions.
So interesting, isn’t it? Can I just talk about the one point that relates to me above – my evidence that this blog is biased against women. What I am referring to is mainly, but not only, responses to my own blogs. I am always treated warmly and with courtesy by Bomber, and several of the writers, notably John Minto (@40years since the tour) are good friends. Bomber once commented to me that I get some weird responses, and that is undoubtedly true, and undoubtedly gender-related. There is also the patronising comments I occasionally get from comrades, most on show last year in relation to my disagreement that we should all have stayed in the Labour Party and fought back in 1989, instead of forming the Alliance (sorry to those of you not born then!). of the “well, Liz, we have decided…” variety. As if I would just fall in line, nowadays. Anyhow, I am of the ‘don’t get mad, get even’ school of thought, and my next blog (look for it Monday evening, reporting on some research I have been doing), provides a fascinating alternative view of… well tune in to see.
“my evidence that this blog is biased against women. What I am referring to is mainly, but not only, responses to my own blogs.”
Really, that surprises me, I’d have thought you sat in a pretty central and thoughtful position as far as the readership of this blog is concerned.
We need to understand how crooked the system of justice is now and then look at what is proposed in this bill and what ramifications this will have. So how crooked is it now? Let me explain. Marie Dyhrberg QC speaks of how easily an accused person can be convicted by a lying complainant. If you ask any Criminal Defence Lawyer now how often a Police Officer will lie on the witness stand to get an accused convicted they will tell you it is a regular occurrence …. Ok so the Defence lawyer knows that well and then he/she becomes a Judge. Once on the bench how often will that Judge find a Police Officer is lying on the stand ….. hardly ever and its because he/she has become part of the system and the system is crooked! Please if anyone can say this is not true please post it on here.
ALL MEN ARE EVIL , ALL WOMAN ARE GOOD .
I remember a situation some 15 yrs ago while working at a large chch home improvement store where a senior manager confided to me he had been unable to see his children for some 3 yrs as a result of a compliant by his ex wife that he had been sexually abusing them .After numerous psychological reports , police investigations and a court case he was found innocent and no substantive evidence could be found to support those allegations . He was then able to see his children again.
In the mean time he had suffered in terms of stigma at work ,his relationship with his children, his mental health ,his social relationships ,his future employment prospects and had to borrow over $ 50,000 to pay for his defence legal fees , (which he was not able recover ).It had all but destroyed him as a person and I had no reason to disbelieve him .
His ex-wife who had manufactured the allegations faced no financial sanctions or costs at all .At one point she had disclosed to a mutual friend that the sexual abuse behaviour had never occurred but she was intent to wreck his life as a result of him leaving the relationship .
I remember being deeply moved by this story .I was genuinely angry by the injustice of a police/legal system where the person who had caused so much pain to the other and manipulated the system for personal revenge could move on smuggly with no accountability and no cost . A System where the innocent party had suffered 3 years of hell and a $ 50, 000 debt to pay off for the rest of their life , for something they never did. Its bullshit. And it needs to be fixed .
People who commit sexual crimes should be punished .
And people who make false or malicious accusations in regard to sexual or other crimes should also be punished .
1.Like the UK model we need a stronger legal deterrent in NZ where the law is being abused .
2. People need to be told ,AT THE START OF AN INVESTIGATION , that should their claim prove to be ,on the balance of probabilities ,fabricated , vexatious , or malicious there will be significant financial consequences .Payable both to the agencies and the victim.
3.In the CHCH case, the psychological pain , and financial hardship caused to her ex-husband was highly significant but the waste of police/court /legal resources used by this person was similarly unacceptable .
4. Not only was she not been punished , there remains a precedent for other disgruntled ex-partners to do the same with similarly no fear of punishment or financial cost . Nothing has changed in 15 yrs and men in similar situations still remain vulnerable .
5. Had there been ” financial consequences” already in place for false accusations (,told to complainants by the police AT THE OUTSET of a compliant) , its my bet ,the ex-wife would have strongly reconsidered her motovation to proceed .
6.It appears she persisted with a false narrative , because she could cause maximum damage without incurring costs herself .
7. Not all men are evil and not all women are good .
Any person ,man or woman who lies or weaponises fabricated sexual abuse claims to inflict harm on a previous partner /lover ,needs to face the threat of real financial consequences and/or compensation to the victim and their reputation , where that evidence is demonstrably false or fabricated . That’s a fair go .
Potential fines or financial costs for false accusers means fewer cases clogging courts,a better use of police time , less trauma and costs for good fathers and a better bond for the kids . As in so many cases prevention is better than cure and the law needs to tighten up .If they can do it in the UK we can do it here .
Im strongly with Dyberg on this one , lucid ,balanced , extremely well written and long overdue Men can be victims too .
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