How a woman's rape complaint led to her arrest for underage sex

by Donna Chisholm / 07 June, 2018

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Lawyer Michael Bott and his client “Bex”, in shadow: the prosecution left him “dumbstruck”, he says. Photo/Hagen Hopkins

Lawyer Michael Bott and his client “Bex”, in shadow: the prosecution left him “dumbstruck”, he says. Photo/Hagen Hopkins

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The shocking story of a woman who went to the police to complain of rape and ended up charged with having underage sex with her alleged assailant. 

A Wellington woman who found herself on trial after alleging that she’d been raped by a teenage boy says she has lost all faith in the police. The 31-year-old was acquitted at a jury trial, but police have not pursued the 14-year-old she accused of rape.

Speaking publicly for the first time about her ordeal, the woman we’ll call Bex (her name is suppressed) told the Listener the experience left her “broken” and suicidal. “I personally wouldn’t go to the police again,” she says.

The boy she claims raped her was the son of her lesbian fiancée, who supported her when she laid the complaint, saying she recognised her son needed help. But at a trial in July last year, the fiancée testified for the prosecution. Bex was ultimately acquitted of three charges of sexual connection with a young person, and wilfully attempting to pervert the course of justice.

Bex’s lawyer, Michael Bott, says he has heard of accusers being charged with making a false complaint, but he cannot recall a rape complainant being herself tried for a sex crime as a direct result of the allegation. The prosecution left him “dumbstruck”.

“What was bizarre in this case is that there doesn’t appear to have been any serious analysis of the substance of the charges at all and the evidence supporting and contradicting it.” He says the police took the view that Bex made false allegations against the boy to get him into trouble.

Louise Nicholas, an advocate for victims of sexual violence, says she believes police failed the woman “miserably” by doing what Nicholas calls a “half-arsed” investigation. She believes they should look at the case anew now that the woman has been acquitted.

“People might say 14-year-old boys don’t do this. They do.”

Nicholas says the training she’s been doing for the police for the past four years aimed to avoid exactly this sort of scenario. As soon as police decided there was insufficient evidence to act on the woman’s original complaint, she should have been advised, and support put in place. “The silence [from police] is the biggest killer for survivors. No communication, no updates. It can tip people over the edge.” Nicholas says she expects she will use the case as an example in the courses she conducts for the police.

Victims advocate Louise Nicholas says the police should look at the case anew.

Victims advocate Louise Nicholas says the police should look at the case anew.

Question of consent

Justice Minister Andrew Little told the Listener that he did not know all the facts, but he thought the police should have advised the woman at the outset that the investigation would likely explore whether the sexual activity was consensual and therefore illegal. He also thought she should have been informed when the decision was made not to prosecute the boy.

Police refused to be interviewed about the case, but answered some questions by email. Detective Senior Sergeant Glenn Barnett wrote that “investigating officers recognised the complexities of this case involving a [then] 29-year-old woman and a 14-year-old young person, and, as was appropriate, sought legal advice from the Police Legal Section”.

“Police are satisfied that a thorough investigation was conducted and it was fully reviewed by both the investigators and the appropriate legal officers. The matter has been heard and tested before the courts. If any new information comes to light, it will be assessed by investigators to determine whether it is relevant to this case.”

A drunken night

The incident happened in the autumn of 2016, after Bex and her partner had had friends over for dinner and drinks. Bex says she got “very drunk” that night, as did her partner, who went to bed. “I was going to play PlayStation and I passed out on the couch.”

She claims she woke in the early hours of the morning to find her jeans had been pulled off and the boy was raping her. He ejaculated onto the couch, then returned to a sleepout where he and some friends were playing video games.

Bott says Bex, who was “overwhelmed and beyond exhausted”, climbed back into bed with her partner and cried herself to sleep. The next day, he says, she woke to the “toxic cocktail of emotions so often experienced by those who have suffered sexual violation: revulsion, confusion, anger and a deep depression”.

During a “week of misery” she kept it to herself, but became so withdrawn that her partner demanded to know what was wrong.

Bex told the Listener that although her partner initially confronted her son and called him a “dirty f---ing rapist”, her own relationship with her fiancée was effectively over at that point. “As soon as I told her, we never slept in the same bed again; that was it.” The pair had been together for three years, and engaged for eight months. “She had to take sides,” says Bex, “and she picked her son.”

Bex says until that point, she had had a good relationship with the boy. “He was like a son to me. He and I had the best relationship, because we both liked playing PlayStation.

“We had a connection, but it never struck me as odd. He’s a very huggy kid, but I’d never hug him back. I never gave him the wrong impression – I was gay, for a start.”

Bex, accompanied by her brother, reported the alleged rape at the Upper Hutt police station eight days after it happened. Police were kind and supportive – “I felt believed, and that they were going to do something about it” – but they were not the same staff who handled the investigation.

After recording a video interview, Bex says, she heard almost nothing from the police for five months until she received an email from the officer in charge of the case inviting her to the police station. When she got there, she was arrested. She had never met the officer before.

“There was no ‘bring a support person’ or ‘contact your lawyer’. Just ‘come in and we’ll discuss what’s going to happen’. I thought either they would do something about [my complaint] or say they didn’t have enough evidence and it would be dropped.

“She didn’t question me. She just said, ‘Look, we’re arresting you’, and read me my rights. I was in shock. I was so taken aback – it hadn’t even entered my mind that it was even a possibility. I just shut down.”

Michael Bott. Photo/Hagen Hopkins

Michael Bott. Photo/Hagen Hopkins

Suicidal thoughts

While she was driving home after being charged, Bex phoned her brother. “She said she wanted to drive into the river,” he told the Listener. “That’s how disgusted she felt about the way she was treated. It nearly killed her.” She became suicidal and started drinking heavily. “It was gut-wrenching,” her brother says. “I was trying to be positive, but it wasn’t a positive situation.”

Bex, who ran her own business, says during this period, she was charged with drink-driving. “I lost my licence and the business. I was in such a horrible place, I wanted to kill myself.” When she lost her licence, she voluntarily took alcohol and drug counselling for several months.

The experience cost her almost everything. “I was doing the right thing and trying to get him help, and telling the truth like you’re meant to. I lost my whole life. I lost the family I’d made through my partner; the friends I’d made … no one wanted a bar of it. I got kicked to the side.” She says police still haven’t explained to her “why they went after me after I asked for help”.

Bott criticised the police for never investigating glaring contradictions between the boy’s evidence and that of his friends in the sleepout. “In my view, they had made up their minds; they had classic tunnel vision and they failed to look at anything that contradicted their theory.

“The boy said Bex plied him with large amounts of alcohol during the night as she repeatedly came into the sleepout to rub her buttocks against him, in front of his friends. Yet during the trial and in their statements, his friends were clear that Bex gave them only one sip from her bottle and never rubbed her body against their friend.”

The boy had claimed the sex was consensual and Bex was “gagging for it”, but also agreed with her account that no kissing or touching occurred and that she just lay there silent and motionless. The boy claimed he was drunk – his friends said he was not.

Police also did not do DNA testing on the couch to ascertain where the semen was located. While its simple presence would have been irrelevant – both Bex and the boy said sex had occurred – they gave differing versions of where on the couch it had been deposited. Tests could have corroborated the evidence of one and undermined the other.

Bott says he asked the officer in charge at the trial why the police did not do the DNA testing. She said because the boy lived at the house, he might have ejaculated on other areas of the couch, so DNA was not an issue. He says he had to make several applications to get access to the evidence held by the Crown, including a DVD of the boy’s interview.

Bott says that over the years, politicians have sought to increase their popularity by being tough on crime. “People who are charged are more likely to be guilty, they reason, so steps should be put in place to short-circuit the process of trial.”

Since January 2017, defence lawyers in sexual violence cases have been denied access to complainants’ evidential video interviews and have to apply to the judge, listing reasons the material is needed. It used to be part of routine disclosure but “access is now the exception rather than the rule”, Bott says. He says when he and Bex watched the boy’s interview, they noticed his answers were short and stilted when he recounted the incident, but he was relaxed and almost garrulous when he was asked about unrelated matters. “It suddenly hit me that this young man, when recounting sex, was not recalling from memory at all but seemed to be constructing a script in his head.”

Criminal Bar Association president Len Andersen, a Dunedin barrister.

Protectionist mindset

Dunedin barrister Len Andersen, the president of the Criminal Bar Association, says the case surprised but did not shock him. “While I don’t think it’s right, you can see a situation where police would not look beyond the fact that this was an underage child having sex with an adult and a prosecution would follow. I think it’s because of their protectionist mindset: young people are to be protected at all costs. Without knowing any more about it, they simply look at the fact that it was a young person having sex with an adult and think she’s complaining to protect herself.”

He says the prosecution wouldn’t have happened if the boy had been an adult. It was unlikely the woman’s acquittal would see the case reopened, because the police would see the result not necessarily as vindication of the woman’s version of events, but as an unjustified acquittal.

“There’s a great deal of sensitivity now about sexual violence cases and there has been incredible education of police and judges, around the issues, and the impediments to people being prosecuted. The trouble with that is that’s just one side of the equation. There’s also the issue of people who are wrongly charged and unfortunately there seems to be a reluctance to investigate as opposed to just accepting complaints.”

Bott believes several factors tipped the police into charging Bex. “She said she was gay but had children obviously from heterosexual encounters, so perhaps they had some doubt about that, without fully understanding how people express their sexuality and come out.

“Then there were concerns because she got drunk on the night and other adults said she was being rowdy and silly. She’d given the boys a sip out of her vodka bottle, but the boy’s mother [her partner] said she was plying the boy with alcohol – although she hadn’t seen it directly.”

Waiting in the cells

The trial lasted five days, and the jury deliberated for more than five hours before returning not-guilty verdicts. “I had to sit in the cells every day,” says Bex. “If I wasn’t in court, I was in the cells.”

Adele Garrick, for the Crown, told the jury that alcohol could make people behave in ways they otherwise would not. She said the woman had “wanted sex but regretted it the next day” and had made up a story that “snowballed” into a complaint to the police. “They both wanted this to happen.”

Bex told the Listener she was asked why she didn’t do anything when she woke to find herself being raped. “It’s called freezing. It’s not consent. I opened my eyes to identify who was doing it and I felt sick to my stomach. You hear things like, ‘Your blood runs cold’, and it’s true. I felt sick. I couldn’t move – only wait for it to be over.”

She says the Crown’s opening statement saying she was drunk and “wanted it” made her feel sick. “The worst part was having to recall every single disgusting thing he did in front of a courtroom full of people. They tried to say the bruising I suffered on the backs of my legs was from me bumping into things stumbling around. I don’t walk around backwards.”

The moment she heard the jury forewoman say the words “not guilty”, “my legs nearly went from under me”, she says. “Being able to tell my kids it was all over, and they didn’t have to worry any more, was amazing.”

Like Andersen, she believes she was prosecuted because of the boy’s age, “and it was my word against his. That’s not good enough. He’s definitely not the first young person [to do this] and he won’t be the last. We need better law around these situations.”

Bott says he was relieved at the verdicts, but the case should never have made it to trial. “Bex and her complaint deserved better than this.” Meanwhile, in Bott’s opinion, “there is a teenager in our midst who thinks he can get away with what he did.”

He says police badly failed the victim. “She was treated shamefully. They conducted a forensically weak investigation and were aided by a system increasingly geared to making the job of defence lawyers even harder and, by extension, increasingly hostile to protections like the presumption of innocence.”

He told jurors they had to acquit if they had any doubt the woman wanted to have sex with the boy. He asked them if it was any wonder that eight out of nine incidents of sexual assault went unreported to the police. “The answer is in the dock.”


 


Where to get help:
Rape Crisis – 0800 883 300 (for support after rape or sexual assault)
Shine –  0508 744 633 confidential domestic abuse helpline
Need to talk? Free call or text 1737 anytime for support from a trained counsellor
Lifeline – 0800 543 354 or (09) 5222 999 within Auckland
Youthline – 0800 376 633, free text 234 or email talk@youthline.co.nz or online chat This article was first published in the June 9, 2018 issue of the New Zealand Listener.

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