Tuesday, July 15, 2014

It's the end of the world as men know it and I feel fine

Recently Andrew Little mentioned that Labour would look at making changes to how sexual assault cases are approached by the courts. He mentioned that he favoured a move to the inquisitorial system where the Judge investigates the claims and interviews the victim, rather than the traditional English adversarial system.

The response from the right was typical.

Suddenly every man had a story to tell about a friend of a friend who was currently doing time on a false accusation of rape.
Suddenly every man cared ever so deeply about the fundamental rule of law that says an accused is innocent until proven guilty. They quoted the New Zealand Bill of Rights and the Universal Declaration of Human Rights. It was the end of civilization.
The courts were going to be overrun by women making false claims to save face for the night they got plastered and regretted sleeping with Gerry from Accounts.

The response from (men) on the left was...sadly...typical.

Suddenly every man had a story to tell about a friend of a friend who was currently doing time on a false accusation of rape.
Suddenly every man cared ever so deeply about the fundamental rule of law that says an accused is innocent until proven guilty. They quoted the New Zealand Bill of Rights and the Universal Declaration of Human Rights. It was the end of civilization.
The courts were going to be overrun by women making false claims to save face for the night they got plastered and regretted sleeping with Gerry from Accounts.

If you're one of these left-leaning men, then this blog's for you.

Firstly, calm the fuck down.


Let's take a look at what Andrew Little actually said:



"As for trials of sexual offences, the reason why many victims either don't lay a complaint or don't go through with one is fear of the court process and the likelihood of humiliation and re-victimisation...
"A better measure would be to hand control of all examination of a victim to the judge with lawyers for both sides notifying the court which issues they want dealt with, along with shifting the burden of proof on the issue of consent to the defence.
"This approach does not contradict the fundamental principle that a defendant is innocent until proven guilty - the basic facts of the case still have to be made out - but it does mean the prosecution doesn't need to prove a negative, namely that there was no consent."

Certainly not the end of the world statement it's been made out to be. He also confirmed, not long after, that an inquisitorial system was not official policy and that Labour was waiting on a Law Commission report into inquisitorial systems. That's right, the Law Commission was already undertaking a pros/cons assessment of inquisitorial systems. Guess what else? Former National Party Justice Minister Simon Power was the one who asked the Law Commission to investigate. This is not a new idea. It's been kicking around for a while.
So stop blowing things out of proportion.
The next thing to note is that the English Common Law system adopted by New Zealand isn't the only system in the world, in fact it's not as common as you think. In Europe their legal system is based on the Roman civil code and it is common for Judges to take an inquisitorial role. In some countries the Judges aren't former lawyers. They train to become Judges through a separate qualification system and take a very active investigative role in criminal proceedings. 
Yes, this notion of "innocent until proven guilty" is a core element of our legal system, but no one is proposing that the burden of proof for criminal matters move from "beyond reasonable doubt" to the civil burden of proof of "balance of probabilities". The conversation is simply that we may need to look at and discuss other options for areas of law where the current system is a failure.
Interestingly there have been a number of changes to our legal system in the past few years that have overridden fundamental principles of our system. One very clear example is the change to remove the right for many people to a jury trial. Previously anyone that was facing 3 months or more in prison could elect a jury trial. That has now changed so that you must be facing 2 years or more in prison. This right goes back to the freakin Magna Carta. It also involved a change to the Bill of Rights. Yes that's right, the precious Bill of Rights you suddenly care so much about being overridden (which it can be, because it's not supreme law) was not just overridden, but actually changed. 
And you didn't give a shit.
Now that we've got that out the way, there's some other parts of the Bill of Rights and the Universal Declaration of Human Rights that you seem to have neglected:
From the Bill of Rights s19(1):
  • Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.

From the UDHR Article 2:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as...sex
You see, a system where at least one in five women experience sexual assault; where only 9% of sexual assaults get reported to the Police, only 30% of those reports proceed to prosecution and only 13% of reported sexual assault ends in conviction; a system where we are ranked the worst of all OECD countries for rates of sexual violence, is a system where we breach the Bill of Rights and the Universal Declaration of Human Rights on a daily basis. 
So why aren't you jumping up and down about this? Why is this not the end of the world as we know it? 
Now I haven't read enough about the inquisitorial system to have formed an opinion on it yet, but I do know that radical change is needed. Let's at least have a rational conversation about it for fucks sake. You're supposed to be on the left - you know, the non-conservative, progressive side?
Lastly, but maybe most importantly, there is one more thing I need to add. If you truly believe that a change to the current system would see an overflow of women making false claims to save face for sleeping with someone and regretting it, then you are saying two things:
  1. That women would be prepared to go through the horrors of court, the interrogation and public humiliation just to 'save face' (yes this is as contradictory as it sounds).
  2. That women are so vindictive, so immoral, that they would rather see someone put in prison than admit they slept with them.
The first one makes you an idiot. The second one makes you a misogynist.

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