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The Govt has backed away from plans to reverse the burden of proof in rape cases

Andrew Little. Photo/Getty Images

“We have to maintain the principle of innocent until proven guilty and the Crown must prove all elements of the [sexual] offence,” Justice Minister Andrew Little told the Listener.

A proposal to require accused rapists to prove sex was consensual won’t go ahead. Before the 2014 general election campaign, Andrew Little – then the Labour Party’s justice spokesman and now the Justice Minister – said that if the Crown proved a sexual encounter happened, it should be construed as rape unless the defendant could prove it was consensual.

The idea was refloated in April last year, when Labour’s sexual violence spokesperson, Christchurch East MP Poto Williams, called for similar reforms, which would require police to start with the assumption that rape accusers were to be believed.

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“I know that runs up against [the idea of being] innocent until proven guilty and that would be one of the issues that we’d really have to consider long and hard, but I’m of the view that we have to make some changes,” she was reported as saying. The plan was condemned by lawyers.

Little told the Listener that although he was keen to introduce changes that would increase New Zealand’s conviction rate for sex crimes, the idea that defendants would have to prove consent was a shift too far.

“I raised the fact that one of the issues in our sexual violation laws was that the Crown had to prove a negative – no consent – and that was problematic, but we’re not doing any work on it at the moment. It’s not going anywhere. We have to maintain the principle of innocent until proven guilty and the Crown must prove all elements of the offence.

“I’m confident that there are other things we can do to lift the conviction rate and make sure that victims of sexual violence are not revictimised in the process, which is what they are at the moment.”

Little has signalled that a Law Commission review of an inquisitorial rather than adversarial legal approach to cases of sexual violence is likely to be reopened, though not this year. In 2012, the then Justice Minister, Judith Collins, shelved the review after two years’ work, saying that the sentiment of an inquisitorial system was sound but the practicality was not. It would be particularly problematic when an accused was facing related charges that didn’t involve sexual violence.

Little is keen to explore the approach of special sexual-violence courts, in which the judge, rather than the lawyer for the accused, would question a complainant. But he recognises that the justice system has to respect the principle that defendants are entitled to see and test the allegations against them.

“If we’re going to call to account those who commit acts of sexual violence and increase our conviction rate we’re going to have to find a better way that’s respectful of those criminal and legal principles but also respectful of the victim and gets them justice.”

This article was first published in the June 9, 2018 issue of the New Zealand Listener.