Peter Kemp, a legal practitioner in NSW, sent me this link, noting that it has significant implications on the right to a fair trial and that there are many points of view to be considered.
BARRISTERS will be refused permission to cross-examine children and sexual assault victims under an Australian-first law to be brought in by the NSW Government.
Changes to the Evidence Act will mean the most vulnerable crime victims and witnesses will be able to give their evidence uninterrupted, in story form.
The changes come after Attorney-General John Hatzistergos last month urged the NSW Bar Association to ban the asking of embarrassing, harassing or intimidating questions, even if their clients tell them to.
Premier Morris Iemma said he was determined to protect children and victims of sexual assault from harassment and predatory cross-examination in court.
“This is about protecting victims – especially children – who come forward and deserve the right to not be harassed in providing evidence,” he said.
Judges will have the authority to declare a victim a no-go zone for barristers, who have caused community outrage by attacking victims in the witness box.
Victims can now apply to tell their story without interruption but the changes will streamline the process and mean victims and witnesses will only be able to be cross-examined if the judge allows it.
Peter’s concerns are with the balance between the rights of victims and accused.
We already have in NSW’s Criminal Procedure Act (s. 93) restrictions to cross examine in COMMITTALS ie an application to cross examine is subject to “special reasons” in committal proceedings. […] The context for committals is legislation about a year ago in NSW, which took the consent of defence and DPP for cross examination away and placed the ultimate decision in the hands of Local Court Magistrates. (I’m referring to strictly indictable offenses where committal in the Local Court sends the case up to the District Court) Further context is the legislation which tries to avoid (second reading speech when the original legislation was made for committals) the alleged victim being “put on trial twice”, at committal and the trial proper.
Most of the legal profession (including myself) will come out strongly against this as the fundamental principle of a fair trial is for the accused to have the right to confront the accuser and test the evidence. This of course is a long held principle of our British legal heritage.
He also raises a very pertinent question:
The question arises as to why will this law will be restricted to sexual assaults and not , for example, to victims of horrific assault occasioning bodily harm/attempted murder by knife of gunshot where arguably, the victim is equally traumatised.
My ability to penetrate the dense legal jargon of criminal jurisprudence is limited, so hopefully Peter and other legal practitioners will weigh in with some plain language elucidation in discussion.
At first glance, of course my sympathies are with sexual assault victims being confronted by “predatory cross-examination”. Peter argues that other crimes traumatise victims as well, which of course is true, but there is a special stigma on rape that blames the victim both overtly and covertly, which does make the victim experience in cases of sexual assault especially difficult, and mean that certain harassing questions are far more likely to be asked in the case of sexual assault than in other cases. This largely comes down to an assumption that in all other cases of bodily harm, no-one would agree to be bashed/stabbed/shot even if they agreed to the behaviour that led to the bodily harm, an assumption which largely goes out the window in cases of sexual assault (how many assault cases where someone agreed to sex but is harmed against their will during that sex ever even go ahead to court?). An attempt to redress the balance of social prejudice regarding sexual assault in favour of alleged victims seems entirely reasonable, but any accused still deserves a fair trial.
Generally, I’m not a fan of our strictly adversarial court system, and would favour a move to a more inquisitorial style of addressing justice. The way in which advocates have traditionally used “embarrassing, harassing or intimidating questions” to the detriment of straightforward testimony is, in my opinion, a blot upon the whole system. Allowing all alleged victims of any crime, and indeed all witnesses, to give their initial evidence in a narrative form (rather than as a constant stream of yes/no answers to deliberately obfuscatory and/or prejudicial questions from lawyers) strikes me generally as a great step forward. Yet, the idea of no cross-examination at all does make me uneasy: I know that if I were accused of any crime I certainly would want to be able to (via my legal advocate) confront my accuser and test their evidence.
So, while a move to encouraging more narrative testimony seems a step forward in principle, I agree with Peter that the issue needs more public examination.
1. Why confine this narrative testimony initiative only to cases of sexual assault?
2. Why not still allow cross-examination, subject to the existing Local Court Magistrates control over out-of-bounds questions, after the narrative testimony has been given to the court?
Categories: ethics & philosophy, law & order, violence
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I’m still fuming so I will just say that his concerns are justified; currently the balance is so far in the accused’s favour that most cases of sexual assault go unpunished. The changes to committal procedures were completely justified. Defense lawyers admit to using cross-examination in the committal phase to give the victim a ‘foretaste’ of the kind of beating they can expect in the trial phase. This had the intended effect of causing victims to drop out before the matter went to trial. If Peter Kemp has alternative ideas on how the legal system can provide a fair standard of justice to the victims then I would be interested to here them.
That’s my gut feeling as well, su.
It strikes me that the proposed legislation is mainly a form of streamlining the current process where special application has to be made to give initial testimony as an uninterrupted narrative, making narrative testimony the standard rather than a special provision. I’m definitely in favour of that, as well as your points about the current provisions blocking cross-examination during committal phase.
I’m also not sure that the legislation is the blow-torch to testing an accuser’s evidence that Peter suggests. Giving magistrates the power to block such cross-examination if it’s judged as harassing doesn’t mean that this power will always be used, because obviously such judicial decisions are going to have to be defensible before an appeals court.
While we’re at poking holes at judicial procedure, why aren’t witnesses allowed to refer to notes, generally? Or is that just an incorrect impression I’m getting from TV dramas? I see judges making notes and referring to them, lawyers making notes and referring to them, police officers referring to their notebooks. The police are just witnesses, are other witnesses allowed to use notes?
That is what I thought as well. It is important to remember that witnesses are unrepresented; the prosecutor represents the crown, not the victim. The comparison between sexual assault victims and other victims of violent crime is invalid because cross-examination in those cases rarely proceeds on the basis that the crime did not occur but on the basis that the accused was not the perpetrator. This is particularly important because the victim is unrepresented.
I don’t have much to add; I just wanted to say that I really appreciate your insights here (as I did with your post about Kevin Rudd’s policy about getting nurses back to work).
Thanks tigtog
Answering the questions in order, one post at a time if I may (otherwise it’ll be metres long 🙂
Su, re:
I’d take issue with that but I don’t have any statistical evidence at hand. What I would say, is that leaving aside the clear cases of sexual assault where there is both DNA evidence plus medical evidence of internal/external injuries or evidence from other witnesses corroborating the assault (or even propensity/coincidence evidence where respectively the accused has a record of such assaults or had presented for example on many occasions underwear to the alleged victim as a “gift”) : we are left with say DNA evidence only and a “one on one” situation on consent, the word of the victim against the word of the accused.
These cases, I suggest, might represent the majority of your “unpunished” accused. One on one is a difficult one for a jury, as all they can go on is in short, the demeanor of the witnesses while giving evidence AND being cross examined on it, ie were they credible? Keeping in mind it is the duty of the prosecution to prove their case beyond reasonable doubt and not for the accused to prove innocence, it should not be surprising that “one on one” cases have a majority of “not guilty” findings.
I won’t comment on what other lawyers may admit, but the purpose of committal is to sort out and discharge the weak cases. The Local Court Magistrate puts her/himself in the shoes of a jury and asks, could this evidence, taken at its highest and face value, put to a jury, result in a conviction?
Section 91s (other witnesses) and s93 applications (alleged victim)for cross examinations at committal are now IMHO being rejected at higher rates that ever before. My feeling is that now, they are are becoming a waste of time. In any event, the committal situation is not that important in the scale of things. Trial and cross examination is a much more important issue, given the political winds and the smh article.
I might leave that one for later on Su, but I will address it in terms of balance and that the accused has rights as well.
Just to clarify the existing procedure Tigtog, the alleged victim firstly gives evidence which is called “Evidence in Chief” on questions from the prosecutor, largely in narrative form, without “leading” questions being allowed. eg “What happened next”. On completion the defence “Cross Examines” where leading questions are allowed eg “I put it to you ‘x’ happened”. (Note Re-examination may also occur.)
http://www.austlii.edu.au/au/legis/nsw/consol_act/ea199580/s28.html
As I understand it, the proposals would allow Evidence in Chief, but would disallow Cross Examination in unspecified circumstances.
Fortunately I do. The vast majority of the estimated NSW cases of sexual assault do not make it to court. We know this because the rate at which sexual assault is reported in survey after survey is orders of magnitude greater than the rate at which assaults are reported to police. See for eg the ABS Personal Safety Survey 2005. Of assaults reported to police 3% make it to court and 1% result in a conviction. This is despite evidence that the rate of false reports of sexual assault (including those made during family court proceedings) are no greater than the rate of false reports of any other crime. You’ll have to bear with me while I dig out references I am quoting these from memory. Why do women not report sexual assault? Because the culture at large and in particular the legal system do no support them adequately and the victim is effectively on trial under current conditions. Why is the conviction rate so appallingly low? Well- see the 202 page report of the Criminal Justice Sexual Offences Taskforce.
If victims are to be cross examined on the basis that they are lying (as they invariably are) then they should be protected from the worst abuses that defence counsels have perpetrated against them in the past either through the presence of their own legal counsel or via the proposed changes.
It is not enough to advocate for the status quo because the status quo fails women on a daily basis. If you oppose these changes and do not offer another viable alternative whereby the current revictimising of sexual assault victims by defence counsel is prevented then you are perpetuating an unfair and at heart, deeply misogynistic system.
I expressed myself clumsily Su, when I said I take issue, I meant that there are legal reasons for the high rate of acquittals in “one on one” cases, perhaps a significant proportion of your non-conviction rate.
I don’t dispute the “unreported” cases you mention which the criminologists call the “dark area” of crime, subject to many schools of thought, and statisticians.
Is there a link to “Criminal Justice Sexual Offences Taskforce?” I’d really like to read that.
Alleged victims have a Crown/DPP prosecutor to protect them, to object to questions on various grounds which a Judge rules on, as is done for the admissability of evidence. (eg search warrants carried out illegally means that evidence can be excluded and the jury never hears it)
I’ll put the burning question another way, a corollary, if the victim is not allowed to be cross examined, then, on what grounds should the prosecution be allowed to cross examine the accused? (Assuming of course the accused has elected to give Evidence in Chief in the first place)
Here’s the link for the Report, Peter. Even just considering the approx 20% of cases that are reported (eg 9 500 in NSW, 2005 from an estimated 47,000), the conviction rate is approx half that for other crimes (35% cf 70%). That is less than 450 convictions annually, or 1% of estimated occurrences in NSW. As I understand it the powers of the crown prosecutor to act ‘on behalf’ of the victim are far less than those of the defence. Why else would a NSW prosecutor have been disqualified from a case earlier this year for statements deemed to be too sympathetic toward the victim? How else do circumstances arise where a victim, in the course of aggressive questioning was asked whether she had not made an allegation of sexual assault against her own brother in the past. The fact that her brother had in fact been convicted as a result did not come out as part of these proceedings. The proposed changes are an attempt to protect victims from these kinds of abuses. You are assuming that judges will now elect to prevent cross-examination in the majority of cases. Why are you assuming this? I can understand why you might want the circumstances under which a judge might do so quantified, I can not understand why you would reject these changes outright.
With the “one on one” conflicting testimony regarding consent issue being the key component, in Peter’s opinion, of why so many juries acquit such a high proportion of sexual assault defendants, then perhaps that very reason is why the testimony/cross-examination rules need to be different for such cases.
Perhaps all crimes where there is insufficient corroborating evidence to be prima facie evidence that some assault occurred, and it comes down to the alleged victim’s word against the accused, should be dealt with in this proposed fashion that will prevent intimidatory questions from the cross examination. Then it won’t be that sexual assault is being treated differently because it is sexual assault, but that the law notes that one on one conflicting testimony in any crime requires different courtroom practises.
It can also fail victims of all sexes of all types of crimes. I’m not against “positive discrimination” in principle for gender issues. But once the 400 year old principle of being allowed to cross examine an accuser at trial is watered down, a Pandora’s box is opened, tilting the scales so far in the other direction. The presumption of innocence will be inherently reversed, the accused will be inherently presumed guilty by virtue of sexual assault cases uniquely (unspecified as to how/when applied in the proposal) having cross examination rights removed.
Counsel would have an immediate powerful opening to the jury:
It follows that it is entirely possible that even less accused will be convicted if the right to cross examine is tampered with. Juries for whatever reason seem reluctant to convict in sexual assault cases, there could be a risk that they will be more reluctant as a result of the proposed changes.
BTW, I’m not suggesting the proposed changes would be used in a majority of cases. I’m talking thin edge of the wedge.
Balance is so darned hard, at many levels, and simple remedies such as proposed may well have severe and deleterious consequences.
Also, seeing as consent is the burning issue in one on one testimony, surely better results for victims could be obtained by better legislation surrounding the definitions of sexual consent?
As I understand it, the current standard for sexual consent is acquiescence, or “not saying no”. This means that victims incapacitated by alcohol or other drugs, who are incapable of saying no, are often held to have acquiesced. If the legal standard was legislatively reformed to require a standard of active affirmation as legal consent instead of mere acquiescence, it would then be easier for the prosecution to show that the victim in such cases was too incapacitated for active affirmation, and hence convince juries that a sexual assault had indeed taken place.
A standard of active affirmation should also be of value in cases where the accused is an intimate of a victim who has been coerced without chemical incapacitation, a victim too intimidated to say no. The rebuttable standard should be more than just acquiescence.
Changes in the definition of consent are part of John Hatzistergos’ proposed changes (which came out of the report I linked to above- commissioned by the Attorney General’s dept). They read in part;
“A person does not consent to sexual intercourse if the person, A, does not have the capacity to agree to the sexual intercourse”¦”
Also part of the package is a change in the mens rea or “guilty mind” aspect from a subjective definition (ie if he says he didn’t mean to rape her then he didn’t) to an objective one; “would a reasonable person in his position see his actions as constituting rape.”
But the point is that the system DOES NOT fail other victims in the way it fails sexual assault victims (see figures above). This is not positive discrimination, this is redressing a huge imbalance in the administration of justice.
I don’t follow this argument at all Tigtog. One on one means assessment of how the witnesses performed, eg demeanor, consistency, shifty? evasive? truculent? lying? body language? Also credibility evidence, prior inconsistent statements need to be put to the accused or alleged victim, whatever. Take away cross examination and you may as well have the jury toss a coin.
Applied to common assaults, one on one (who hit who first?) apart from tossing the coin here, what courtroom practices can replace cross examination?
Imagine–one on one–the alleged common assault victim reads a statement in a monotone. The accused reads a statement in a monotone. How does anyone decide on that???
Nothing can IMHO replace cross examination in one on one. Courts are not looking for truth per se, they look at proving (criminal)the evidence beyond reasonable doubt, or not. The only way to do it is to test the evidence. By cross examination. It’s been around for hundreds of years and I’ve not yet heard of a better way unless the mind could be made an open book.
And I’m open to other suggestions 🙂
I have to wonder whether your defence of the “art” of cross-examination is not perhaps just a little professionally self-interested, Peter?
My thoughts on alternate court practises are percolating, I’ll get back to you tomorrow after some kip.
This is the change in the evidence act. As far as I can tell, it applies to all cases not just to sexual assault;
How this differs from the current act is outlined in the following paragraph
Without any legal expertise, the change seems to me to be one that gives judges the authority to order a narrative testimony whereas previously the crown alone (in the case of a hypothetical sexual assault victim)held this authority.
This makes sense since one of the other changes undertaken in the last year has been to train judges in the specialist issues arising in sexual assault cases.
All the legislation in the world changing definitions of consent, (ie positive affirmation) in one on one cases doesn’t change much if anything (bar extraneous proof of chemical/drug spiking for example)
How does one prove non-consent under the old rules when it’s one on one?
How does one prove non consent by way of the proposed affirmation rule when it’s one on one?
How does the burden of proof (onus) and standard of proof (beyond reasonable doubt) change between those two questions? It clearly doesn’t change. So again, one on one, no extraneous evidence (except DNA confirming a particular male had sex with a particular female) and what you have is the same problems: the word of one against the other. And allegation is not proof.
But in either case, without cross examination, what chance have you got to determine beyond reasonable doubt?
Re capacity: Does that mean that having sex with an alleged victim who has an alcohol reading above a prescribed amount automatically rate as incapacity to give consent and thus is a proven sexual assault? (In that case what about the variations between individuals as to the effects of alcohol?) Very slippery slope there overall I would suggest, unless there was clear cut evidence that the accused had sex with a drunk and unconscious victim or drunk and semi conscious victim.
Su, re the objective test, that’s far more on the money, though I still would have reservations best left for tomorrow 🙂
Night all, and appreciate your views, Tigtog, Su. Tomorrow is another day!
What does change in those situations is the confidence of both the victim and the accused in their own testimony.
While most psychosexually mature human beings would, I posit, not be inclined to enjoy sex with a partner who is not enthusiastically into it, there are some people who believe that as long as the victim doesn’t say no then it isn’t rape, no matter if the other person is unconscious, no matter if they are lying there stiffly not moving with terror in their eyes, no matter if they are crying while the sex act occurs. Under the current standard, person A can have sex with person B without that person B’s consent and testify in perfect honesty that they don’t think it is rape because person B never actually said no, and because the current standard for consent supports that stance they will be confident that they are in the right and this will be reflected in their demeanour etc.
If the standard is changed to one of active affirmation, then that line of defence will be against the instructions from the bench to the jury about what does and does not constitute consent, and against the prosecution’s questions about consent that are placed to the victim. In that situation an accused will not have the same confidence that they are in the right of it with their defence, and surely this will be reflected in their demeanour etc?
Also, with the change in standard a victim will have much more confidence that their testimony that they did not give active affirmation is strong enough to withstand the scrutiny of the court, and this will reflect their demeanour during testimony as well.
A change in the standard of consent to one of positive affirmation will make a huge difference to exactly the non-verbal aspects of witness credibility you tell us are so essential in the jury’s decision-making.
Surely it is possible to retain the concept of cross-examination while stripping away some of the obnoxious adversarial traditions which have accreted around the practice of cross-examination over the centuries.
Perceived problems with cross-examination as it stands (an incomplete list, I’m sure):
* advocates can demand a yes/no answer to a complex question and have that demand backed by the magistrate;
* advocates can interrupt an answer from a witness;
* witnesses are not allowed to characterise an unfair question (disingenuous/prejudicial/over-simplified) as unfair without facing strictures from the bench;
* advocates can, as a cynical strategy, play a range of theatrical and rhetorical games with the way that they hector/badger witnesses which serve to obfuscate rather than illuminate the witness testimony so that the jury is confused.
So, one simple change that might alleviate most of the above problems could be simply requiring the defence advocate to submit their cross-examination questions to the presiding magistrate, and have the magistrate present those questions to the witness. The questions will still be asked, but most of the potentially intimidatory tactics will be neutralised.
Using current technology the advocate can send a stream of questions electronically to the bench, and the magistrate will have the right to refuse to present inappropriate questions to the witness. The stream of advocate questions can be preserved in case they are required for an appeal process.
I’m sure that the legal profession would have some resistance to changing traditions of cross-examination practise in such a way, but do you agree that the right to cross-examination would still be preserved using these innovations?
I have no objection to raising the bar on consent Tigtog, but I disagree it will make much difference on outcomes, given that the prosecution still has to prove beyond reasonable doubt that the positive affirmation was not given.
OTOH if it does raise confidence levels, you may well be right.
Problem always is there are no other witnesses around to hear the consent, and I’m not being flippant in suggesting that where two people are about to be engaged in consensual sex under an affirmative rule, that an electronic recording of same with electronic timing would be most advisable for people who are relative strangers. In my experience the greatest danger in the consent areas is where the alleged victim has psychological problems and the accused is unaware of that at the time.
Thanks for that link Su, had a quick read, agree with the “disallowed questions” section 41 but so far no banning of cross examination that I can find.
I am puzzled a bit on the narrative emphasis unless they mean the alleged victim is allowed to read a statement. An examination in chief at present can be highly narrative–one question “tell the court what happened” and the alleged victim can tell his/her whole story. In practice the prosecutor prompts and keeps the story relevant. I have no objections to a narrative approach, BUT the witness must be subject to cross examination on that narrative.
As to professional self-interest Tigtog, you’ve got me there 🙂 but even if I did nothing but conveyancing, I’d still have the same belief in the efficaciousness of cross examination.
Actually, my last sentence should replace “the right to cross-examination” with “the right to confront an accuser and test the evidence”, as there is strictly speaking no right to cross-examination, rather the traditions of cross-examination have arisen as the preferred method of “confronting the accuser and testing the evidence”.
I agree to the disallowable questions in s42 of the Bill (Su’s link)
I don’t agree with pre submitting questions to the Magistrate.
I’d agree to the interruptions thing only if you could guarantee the Judge or prosecutor doesn’t interrupt me 🙂
Prosecutors are not exempt from this either. Obfuscation is the word.
Gotta run.
I’ll be interested in your further thoughts later, Peter.
Tch – this is about protecting witnesses from overzealous intimidation. Officers of the court are on their own.
I’m sure that you are right:)
Perhaps all cross-examination questions to all witnesses including the accused should be asked by the magistrate rather than by advocates.
This statement of yours earlier concerns me:
This smacks of the “confused bitches just regret it afterwards and cry rape” trope. There is a distinct frustration at that malicious trope in this forum.
Defendants, however can escape cross-examination, as Peter indicated, by not giving evidence-in-chief.
Why? Is it because once a disallowable question is uttered it cannot be struck from the minds of the jury, even if it is struck from the record of proceedings?
Are defendants legal council still allowed to cross examine a witness on the basis of his/her past sexual history? I would think that banning this approach, just as past convictions can’t be brought up during trial, would be helpful. Just because someone has had multiple partners in the past doesn’t mean they weren’t raped this time.
The relevant section from the Explanatory Notes to the proposed Bill (Evidence Amendment Bill 2007) would seem to be this:
I believe past sexual history has been included in the ambit of “misleading, unduly annoying, harassing, intimidating, offensive, oppressive or repetitive” for some time now, and the new bill beefs up the language from permitting the court to disallow such questions to now requiring the court to disallow such questions.
As I read the explanatory notes, the Bill seems to be concentrating particularly on the issue of child witnesses. There’s no language in these notes that specifically singles out sexual assault cases at all, although obviously the reality is that the major cases involving child witnesses will be cases of sexual assault and other child abuse, just as the cases involving improper questioning are disproportionately likely to be sexual assault cases. The Bill also contains an awful lot of housekeeping getting done with minor amendments to miscellaneous aspects of giving evidence across a broad variety of possible court situations.
The Victorian experience showed that even when specific legislation designed to prevent defence counsel introducing the victim’s sexual history was enacted, the practice continued. That is why training judges and prosecutors in the law in regard to sexual assault was recommended by the report I linked to above (and I believe that some judges have already undergone this training).
I agree that training of some judges is needed. Some of them still seem to exist in the dark ages.
I think Peter’s faith in cross-examination borders on naivety, as he continues to speak of it as if its goal is to REVEAL doubt, when any defence lawyer with a modicum of nous knows how to use it to CREATE doubt.
I fully appreciate the sensitivity of my comment on this forum and apologise if it has caused offence. It is, however a subjective observation based on my personal experience granted in a microcosm in my neck of the woods. I have not the time nor energy to support that comment with objective evidence from case law.
I am in a difficult position where my duty of confidentiality to client(s) precludes me from providing the recent basis of my subjective opinion. Suffice it to say, a barrister I instruct on a regular basis, an expert in cross examination that leaves me for dead, said once to me that the rationalisation and twisting of chronological order of events (for example) of plaintiffs is the bane of his advocacy. He also said, “half our job is to keep the bastards honest.” (referring to prosecutors and “the system”, not alleged victims.) I concur with that.
Su re:
I don’t know where to begin with that question, there’s so much to say. Briefly I would say the effect would be to abolish the adversarial system we have in all common law nations and adopt the European (Continental) inquisitorial system, for sexual assault cases only. What a mishmash that would be.
Orlando re:
It’s not an inference and distinction I think would cut any mustard as argument, more a strawman. Logically, to reveal doubt is Nirvana for the defence. To create doubt is a lesser result but still highly beneficial to the defence.
I’m not making sense of your response. Why would submitting questions _live_ to the judge for them to put to the witness, in a system otherwise identical to the current adversarial system, suddenly turn it into a European-style inquisitorial system?
I don’t know if this would be a reasonable difference to propose for all sexual assault cases and no other cases. It would make more sense to me to apply it to all potentially more “vulnerable” (for want of a better word) victims/witnesses. Child witnesses are the obvious other example, but there may well be others.
Either way. You seem to be basing your arguments on the premise that the system as it stands isn’t broken. Tigtog, su and I all believe that it IS broken, very badly, from the point of view of a woman who has been raped; that it needs fixing, and that we’re just talking about the details. So wrangling over how to fix it with you seems unlikely to meet a useful resolution if you plan to so steadfastly cling to your stance, which is coming across to me as both conservative and [removed]* centric.
*edited to add: removed due to allegations of statements of a potentially defamatory nature
And before anyone attacks the system of common law and the adversarial system, I would make the point that it was a Judge in South Australia, fully cognisant of changing mores in society (the judicial activism that conservatives traditionally hate in our common law system) held that the old contractural concept of “no rape in marriage” could no longer apply.
It was codified in all states in short order.
(Ditto, common law, the HCA and “Terra Nullius.”)
Common law has strengths and weaknesses, the adversarial system has strengths and weaknesses, the European inquisitorial system has strengths and weaknesses. None of these legal systems is above criticism just because some of the results gained at certain times have been definite societal gains.
Describing a suggested live electronic feed of advocate cross-examination questions to the magistrate as “pre-submitting” is not accurate, Peter. It would be a live feed: the advocates would still formulate their questions to the witness in direct response to testimony as it occurs, they would just write them instead of verbalise them, and the magistrate would then ask only the proper questions. That’s not at all the same as an inquisitorial system where the judge formulates their own questions in accordance with the commissioned guidelines for that individual case.
Lauredhel, I’ve trying in a small way, to build a bridge between the legal profession’s point of view and people who frequent this site.
As I pointed out above to Su regarding alternatives, I said:
“I might leave that one for later on Su, but I will address it in terms of balance and that the accused has rights as well.”
My intention was to have some positive contributions in that direction, after absorbing and digesting the dialogue, however long that took. I do have a genuine interest in hearing the points of view here and engaging in constructive dialogue.
But now you have spoiled it, I am in your word “[removed]* centric”. There was a long way to go and as a guest here and sensitive I believe, more than most males arguably, to your concerns, I am saddened that you see have fit to cast that slur.
Without an apology, I must say I don’t have much of a motive remaining to continue.
*edited to add: removed due to allegations of statements of a potentially defamatory nature
“[removed]** centric”. Not “pro-[removed]**”. I chose the term carefully. Over and over again in your comments, you have taken the defendant’s point of view, reinforced his rights and rebutted or deflected every attempt to talk about the rights of a victim and the ways in which revictimisation and abuse are visited on women every day. You _explicitly_ handballed questions on victim’s rights elsewhere in order to focus on the defendants, all the while claiming to bring “balance”. That’s not balance. I’m frankly rather astonished that you came to a rape thread on a feminist blog and expected to find your defendant-focussed remarks welcomed with open arms and no dissent.
You’re not a “guest” here to be treated with kid gloves, as far as I’m aware. You’re a commenter like any other*. Attempts to repeatedly rebut and “yes-but” feminist viewpoints, and you’ll meet with vigorous argument. I have said nothing about you as a person – I am addressing the comments I see here on this thread.
I’m not going to swoon at your feet or mince my words because you’re a precious man deigning to be “sensitive” to feminist thought and expecting some sort of special treatment for it. If you’re a feminist, it shows in your actual words about real situations, not in your professions of sympathy. If you’re a feminist, go ahead and show it. If you want to come in and attempt to refute feminist ideas while hiding behind protestations of bringing “balance”, that’s another matter entirely.
That’s rather the long way round of saying “Check your privilege”.
* edited to add: Just as I am on one of tigtog’s threads.
** edited to add: removed due to allegations of statements of a potentially defamatory nature
Peter: you’ve taken offence at Lauredhel’s comments, but that’s hardly a justification for ignoring the rest of us. You might receive more leeway in your arguments for balance in defendants’ rights if you acknowledged more of the arguments for victims’ rights beforehand.
Your objections centre on cross-examination. As a modification of my earlier suggestion, how about a system whereby an advocate’s cross-questions are electronically transmitted to a magistrate as they are generated in the course of testimony, and the magistrate then indicates yea or nay as to whether the advocate may put them to the witness(es).
The logical progression of the advocate’s questions will be maintained, the major change will be that the necessary pause and delay to transmit and approve the cross-questions will negate certain rhetorical techniques that serve to obfuscate rather than clarify testimony, and the jury will no longer hear questions later ruled inadmissible.
Surely testing the accuser’s evidence does not inherently involve the right to obfuscate testimony. That’s just a tradition that’s been built up, and it’s time for it to be let go.
Peter Kemp has emailed me to let me know he will not be participating further in this thread. Paraphrasing his email, Peter believes that the move into a more free and frank exchange of views has the potential to tempt him into language that might attract formal censure from the Law Society for “unsatisfactory professional conduct” in these dealings with the public outside the office or the court, seeing as he’s posting openly under his own name. Fair enough.
If there happen to be any other courtroom lawyers lurking about, please do feel free to take up cudgels for defendants’ rights under a pseudonym should you be so inclined.
Oh dear. It would be good to have more discussion with someone from a legal background. I have to say though, that I would have hoped that when someone in the legal profession decided to take an absolute stand against a change to the law they would at least have familiarised themselves with the amendments beforehand, and that they would have been aware of consultative process that preceded those amendments.
It was Margaret Cunneen who was removed as prosecutor from a trial because she made statements deemed too sympathetic to the victim. She was also criticised for stating that each time a guilty person is acquitted the justice system has failed the community. There is an old post at LP which examines this and the different sides of the argument were thrashed out by Peter and LP author, Atticus.
Suffice it to say that I hope the knob didn’t hit Peter’s delicate, litigious behind on the way out. Metaphorically speaking.
If he has any problems with the Law Society over his conduct, they’re his problems, not mine or anyone else’s.
And I’m more than happy to keep discussing this topic – from a victim-centric, feminist point of view. For people not familiar with feminism, I highly recommend Tigtog’s rockin’-awesome Feminism 101 FAQ!
I know I am late to the party here, but I just wanted to add that, as someone who has been on the nasty end of victim cross-examination, I concur with tigtog, lauredel and su that the system is broken and desperately needs fixing. More than a decade after the assault I still have daily flashbacks. Not so much to the assault itself, much of which is thankfully now a blur for me, but to the excruciating time I spent in the witness stand ““ repeating over and over in different ways how the incident happened, defending micro portions of my “story’, and defending myself against wild and ridiculous accusations. All with the “defendant’ within eye sight. My longest appearance as a witness lasted two full days, but if you include committal hearings and retrials it works out to about five days all up, sadly I am pretty sure that my experience is not extraordinary. While I know everyone’s experience is different, for me it has been the legal proceedings that have cause the most damage to my life and mental health. Among other things I now find speaking to a group of more than about 3 people excruciating, and there are so many previously ordinary, innocuous words and common phrases that are huge triggers for me and make me feel physically ill ““ these of course come up all the time in everyday conversation.
Having to retell and relive what happened is always going to be painful for a victim ““ and of course you need to tell your story so that justice can be served, I can’t think of anyway around that ““ but the way our system works at the moment only serves to silence women, and to make a brutal example of those who won’t be silenced.
My preference would be for submitting video taped interviews with the victim. Some people might say that this would result in fewer convictions because the evidence can’t be tested, but I personally believe it would result in a lot more, as victims would be more likely to testify if the conditions were less like being assaulted all over again.
Perhaps this is what is most feared. If we make it easy for victims to come forward, then maybe they will. I think secretly people feel we need to make it as hard as possible to sort out the “real’ victims from the perceived hordes of hysterical liars and to protect all the innocent men who will be unjustly accused. I am not sure why this is and why it seems to apply almost exclusively to sexual assault trials, when someone is charged with fraud or theft or murder the default position of witnesses does not appear to be “hysterical until proven otherwise’. Our current system truly is rapist-centric.
Please forgive my using a different pseudonym, I am a previous commenter here and would like to continue to comment in the future without this being the focus of my participation from here on in.
another me: thank you so much for sharing that. I think that sometimes people who come in here forget that they’re not talking about women who have been rape victims, they’re talking TO them.