For some commentators to claim that certain details of Grace Millane's murder should not have been explored in court is to seriously misconstrue the tenets of our justice system.
Yet it doesn’t help them, or any other victims’ loved ones, to now be told by a slew of commentators that the trial “victim-shamed” Millane. It especially doesn’t help that the commentary has come via the very same media outlets that reported every detail as prominently and expansively as possible, with pitiless emphasis on the sexual aspects of the testimony – bluntly, using the trial as click-bait.
To then turn around and say our justice system is somehow responsible for objectifying this victim is rich indeed.
So strongly do New Zealanders feel that victims must not be held culpable for their own murders that we removed the legal defence of provocation for murder charges in 2009. This magazine campaigned for reform after Clayton Weatherston tried to persuade a jury that the behaviour of his ex-partner, Sophie Elliott, had driven him to stab her multiple times. This was a deservedly unsuccessful defence, and public revulsion and the outcry at its being allowed led to swift reform. Murder and manslaughter defendants can still argue mitigating circumstances around their crime, but there is no discount for provocation.
In the trial of Millane’s killer, the accused’s counsel expressly said there would be no question from his side that Millane was in any way to blame for what happened. However, as is allowed, his defence team contended that alcohol was a mitigating factor, suggesting her blood-alcohol level potentiated the risk of death from asphyxiation.
The jury didn’t buy it. Nor did they buy the argument that Millane’s death was an accidental outcome, despite the admission of plausible evidence, based on her sexual preferences and previous dating history, that she might have consented to temporary restriction of her breath. As legal commentators often point out, even if sex begins consensually, it becomes unlawful if at any time during the act a person withdraws their consent or the accused no longer has grounds to believe there is consent. Millane did not consent to her own death. The accused’s reckless intent to harm her led to her murder.
The defence must test all relevant and plausible details. When it comes to publication, judges can suppress details or images on grounds of sensitivity, but usually the principle of open justice prevails.
It’s significant the trial has brought no concerted condemnatory legal chorus. Rather, legal experts have defended the judge’s careful pre-screening of potentially prejudicial evidence, saying it’s essential jurors have a full picture of the context around which offending took place.
It’s understandable that much of the evidence was upsetting to the public. But that raises a different conversation for society: the degree to which young people are now exposed to pornography and media depictions of “rough sex” that may condition us to think violence or coercion is the norm. Britain’s Daily Telegraph reports a forensic psychologist’s chilling view that society is now effectively grooming sexual predators’ victims for them.
Also dangerously awry is the apparent ethos around online dating that by “swiping right” one is under a near-contractual obligation to have sex.
Yet underlying the “victim-shaming” outcry over Grace Millane is a pernicious assumption that we still see something shameful in a woman having a proactive sex life. As difficult as some people find this, online dating is a well-entrenched mainstream social activity. Sometimes it ends in bed, sometimes not. It’s no different from the pre-web practice of hook-ups in bars, except perhaps in being more efficient and pre-selective.
If there actually do exist a few people who believe young women going on Tinder dates are “asking for it”, it is them, not the justice system, who need to be challenged.
This editorial was first published in the December 7, 2019 issue of the New Zealand Listener.