GUEST BLOG: Samira Taghavi – The Sexual Violence Bill – (More) Unintended Consequences

To celebrate the Labour-Green policy announcement that an entire category of crime (sexual offending) can be “ultimately eliminated” if given a twenty-five-year period of attention (after thousands of years of modern human existence in which crime has obviously been a concomitant), the government last week chose to pump the Sexual Violence Bill to the top of the parliamentary order paper.

With undue haste, the Committee of the Whole House stage was ‘completed’ in short segments and now the final stage (the Third Reading), is scheduled to be reached tomorrow. It is of enormous importance that the bill be pushed back down the order paper to allow for attention to be returned to its two seriously-harmful clauses.

A reminder that the bill (propounded originally by Green MP Jan Logie) will have the effect – astoundingly – of presumptively outlawing evidence of innocence and will force defendants to reveal their defences ahead of trial, so that the prosecution and its witnesses will then have the opportunity to make the prosecution case more‘winnable’; thereby doing real damage to the right to silence (a fundamental right –being a corollary to the presumption of innocence). Both of these pernicious provisions will increase conviction rates of the innocent. I have pointed out these obvious consequences several times before (and my advertisement on this page will take you through to my past articles).

Those most apparent consequences (above) are stunningly clear and yet the government has ignored them, no matter that prosecutors and defence lawyers have overwhelmingly and vigorously warned of disaster for nearly two years now. Judges also tend to be far from complimentary as to the bill. The government prefers however to please inexpert idealogues on the feminist left.

MP Simon Bridges, a former prosecutor who specialised in sexual cases, has been working along with other MPs like Chris Penk (supported by speeches given by Nicola Willis et al) to try and bring sanity to the process. As Bridges put it, “the fixes are relatively easy and minor” in alleviating the unworkability of the said provisions and the clearly foreseeable chaos that will be intertwined with their implementation. But what are the other unintended consequences of this bill?

The first is legal action – outside of the criminal courts. Heeni, Lady Phillips- Williams, Co-chair of the Sir Peter Williams QC Penal Reform League, announced last week that, if the bill passes with the two offending provisions in their present form, the government can expect a Waitangi Tribunal claim as to the legislation.

The claim will duly show that the legislation will particularly hurt Māori men, with their already disproportionate conviction rates expected to rise as a result of the bill. Their probability of conviction on a sexual violation charge is already (on a three-year average) some 14 per cent greater than for European defendants on the same charge. This bill will worsen that tragedy.

My office has sought expert advice from a law firm specialising in Waitangi Tribunal work as to the intimated claim and they confirm that such a claim would fit within the tribunal’s claim criteria. A claim against modern criminal law legislation would be novel and potentially of major impact, since success as to one criminal law statute would open the door to success with others. Thus, major impact could follow through into the setting of future government policy, legal aid budgets and who knows what else.

Lady Phillips-Williams also last week wrote to Willie Jackson, the Minister forMāori Development, which letter the minister’s office confirmed it had received.

There, she wrote:

“It is a disgrace that Māori males are over-represented as defendants in NewZealand’s justice system and are also over-represented in the cohort that cannot fund private lawyers, experts and investigators ….

“This bill will only worsen that inequality. It is therefore vitally important to protect fair trial rights for Māori defendants, in particular. I urge you to address urgently the effects of these provisions that would fall disproportionately on Māori”.

She also drew to Jackson’s attention,

“… the implications of this legislation upon New Zealand’s obligationsunder the United Nations Declaration on the Rights of Indigenous People, which you are playing a leading role in implementing.

“Article 3, as you know, protects the rights of indigenous people to self- determination. It must be that a change to fair trial rights that disproportionately affects Māori, is inconsistent with this article – unlessMāori have consented in an unambiguous way. Article 18 similarly provides that indigenous people have the right to participate in decision making in matters that touch directly upon their interests”.

“As an organisation, our league is highly concerned with the welfare ofMāori entangled in the justice system and we consider that the bill breaches both of these articles, as Māori have not been explicitly consulted in a manner that reflects the particular circumstances of Aotearoa’s indigenouspeople. Until such consultation happens, this ultimately means that this legislation does not reflect te ao Māori nor our tikanga”.

The second unforeseen consequence is that the bill can be expected to actually increase trial delays, the ‘staying’ of prosecutions and appeals. Experienced lawyers who practice in this area of law report that no small number of them are already committing to not handling cases affected by this bill – if enacted in its present form. The further consequences of that development will apparently come as an unpleasant surprise to the government.

One such further consequence is that as the number of lawyers who handle these cases shrinks, trial delays will increase. Another result will be that applications for the ‘staying of prosecutions’ because of undue delay will multiply, thereby increasing the number of prosecutions that fail, with defendants walking free who otherwise might not have – some of them guilty. Next, with fewer experienced lawyers handling these cases, more appeals founded on ‘inadequate counsel’ can also be expected. And that all presumes that the Criminal Bar doesn’t refuse to do these cases en masse – that is to ‘strike’ indefinitely.

Last month, I was honoured to introduce an inspiring speaker at the Defence Lawyers Association Conference, being Brigadier General John Baker of the U.S. Marine Corps, who is Chief Defence Counsel for the Guantanamo detainees. General Baker recounted how counsel working under him had withdrawn (with Baker’s endorsement) from representing a Guantanamo defendant, because of the impossibility of serving the interests of justice under a system that is so ridiculously tilted against true justice, such that lawyers could not ethically continue their involvement with the charade.

I now see General Baker’s presentation as presciently instructive. Ms Logie and the government naively presume that lawyers will simply have to ultimately go along with their ideological dictates – that once the bill is passed, we will have no choice. That is an entirely unsafe assumption.

A third (and hitherto-undiscussed) outcome is that, like Māori and other poorer men, the gay community is probably going to suffer disproportionately as well. American research for instance, indicates that gay and bisexual people have more than three times the rate of incarceration as against the population generally (according to the American Journal of Public Health). Criminal statutes that restrict defendants in pleading their defences won’t reduce such peril.

Ms Logie, who in her maiden speech declared herself to be a ‘lefty feminist lesbian’, might soon not be seen by gay sexual case defendants and their families as any type of hero. A lawyer of my acquaintance (also vigorously opposed to the bill), who successfully defended a lesbian client on contrived child sexual assault charges, can no doubt now expect more client enquiries as the police become emboldened to prosecute the most spurious of allegations, bolstered by the protection of the bill. Innocent gay defendants will be able to thank Logie.

The Committee of the Whole House stage was the same perfunctory mirage of‘expertise’ that has blighted this nonsensical bill, with a legally-unqualified Minister of Justice giving formulaic assurances and also with a ‘contribution’being made by the unremittingly self-assured Ms Logie. Educated in Political Science and not Law, Logie resorted to her routine admonition that the bill had had‘two BORA vets’ (a ‘BORA vet’ being merely the pro-government opinion of one government office lawyer on whether the bill is consistent with the Bill of Rights Act) as if parroting that ‘seal of approval’ is worth anything.

Unhappily also, the Committee of the Whole House debate reminded me of an email from a retired judge, formerly a prosecutor, with decades of sexual cases behind him, who had gotten in touch with me to say, “frankly the proponents of this bill do not know what they are talking about”. Indeed, the story of this bill has been of the blind supporting the blind.

So at this very late hour, it is imperative that the bill be pushed down the parliamentary order paper so that unnecessarily-destroyed lives, often of those in society least able to defend themselves, can be saved. If not, the government’s talk of achieving equality for Māori, minority populations and other disadvantaged defendants in the Justice System is, in this area, clearly nothing more than talk.

Samira Taghavi LLM is a criminal defence lawyer and the practice manager for ActiveLegal, a criminal defence firm that operates nationally. She is on the Auckland District Law Society Criminal Law Committee.