Labour’s disturbing rape prosecution reform plans

The presumption of innocence is a fundamental principle of our legal system. Section 25 of the Bill of Right Act 1990 provides “the right to be presumed innocent until proved guilty according to law”. Article 11((1) of the Universal Declaration of Human Rights states that:

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

The presumption of innocence is perhaps best summed up by the expression “The burden of proof is on he who declares, not on he who denies”. In other words, Police must prove beyond reasonable doubt all of the elements of the crime that one stands accused of. In rape cases, that means the Crown must prove beyond reasonable doubt that a complainant did not consent to the sexual activity.

Part of Labour’s policy on preventing sexual violence is to consider “amending the definition of consent in instances of sexual violation to ensure it does not impose an unfair burden on victims of violence”. As the NZ Herald reports:

The policy would mean that in a rape case, if the Crown proved a sexual encounter and the identity of the defendant, it would be rape unless the defendant could prove it was consensual.

The presumption of innocence is there to protect the innocent. As Sir William Blackstone wrote in 1765, “It is better that ten guilty persons escape than that one innocent suffer”. Nonetheless, Andrew Little, Labour’s justice spokesman, doesn’t believe that innocent people get caught up in the system. The NZ Herald reports:

Labour’s justice spokesman Andrew Little did not think the party’s proposal would lead to more innocent people being convicted.

“I don’t see why. You’re assuming that there is a propensity to lay false complaints. There is no evidence pointing to that.”

How nice. So if there are only isolated instances of false rape complaints, it’s perfectly fine to eradicate the presumption of innocence?

Over at the Standard, Stephanie Rodgers tries to minimise the issue by noting that it’s not yet firm policy that Labour will change the burden of proof as to proving consent. First, the Law Commission will complete its report into inquisitorial systems, before Labour then responds to the report:

“It’s headline news: Labour supports re-starting a Law Commission review initiated by Simon Power to investigate possible changes in our judicial system including the option of adopting an inquisitorial approach in cases of sexual violence. Shocking stuff!”


“But the only thing Labour is guilty of is considering an expert, independent review of our justice system. That’s all.”

But it’s not that simple. “Amending the definition of consent” is a specific reform that Labour will be considering, and the likely Justice Minister if Labour forms the next Government, Andrew Little, is aggressively and unequivocally defending the policy of reversing the onus of proof. Those who believe in the presumption of innocence most certainly should be attacking Labour on this policy.

I can appreciate Ms Rodgers’ point that that something is wrong when sexual violence is reported at an estimated rate of only 9%, and that the conviction rate is just 13%. Yes, it’s important that we debate ways in which our justice system can be improved. A conversation regarding the pros and cons of the adversarial and inquisitorial systems may well be fruitful, in terms of the way sexual violence prosecutions are conducted.

Nonetheless, forcing defendants to prove consent, and eroding the presumption of innocence, is not the way forward. It’s a terrible, terrible idea, and it worries me that both Labour and National (National, of course, has declared war on the right to silence) appear to have no respect for some of our fundamental rights.

(As an aside, a number of commentators seem to be assuming that a defendant would have to prove consent beyond reasonable doubt. That’s not necessarily so. Labour (as far as I’m aware) haven’t spelled out what the test would be, but it’s entirely possible that it could be on the balance of probabilities. For example, if the admissibility of identification evidence is challenged by a defendant, s 45(1) of the Evidence Act generally requires the defendant to prove on the balance of probabilities that the evidence is unreliable.

Professor Warren Brookbanks seems to think it would be on the balance of probabilities:

“Usually in these cases, there are no witnesses. Who do you believe? The defendant has to go the full distance of proving to the satisfaction of the court that it’s more probable than not that the victim was consenting. That is a very difficult threshold to reach.”


However, regardless of whether the test is balance of probabilities or beyond reasonable doubt, that doesn’t detract from the fact that Labour’s policy is an insult to the fundamentals of justice.)


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