In this article, the author develops her observations made during the 2012 Suffrage Lecture at the University of Otago. Using the lecture as the starting point, the article considers what law reform over more than 35 years has actually achieved, with a specific focus on the admissibility of evidence about a complainant's previous sexual experience in a criminal case involving rape allegations. It concludes that although policy makers and legislators have been responsive to the concerns expressed by complainants about their treatment in the trial process, little real change to that experience has occurred. More fundamental work needs to be done by way of preventative education, challenging rape mythology and developing new processes to resolve allegations of sexual offending. These are the challenges for the next 35 years.
Recent case law at appellate level in a number of common law jurisdictions has considered the admissibility of "acquittal evidence" – meaning, in the context of this article, either evidence of a defendant's earlier acquittals or evidence on which the acquittals were based. The author argues that the various rulings have resulted in uncertainty and inconsistency and illustrate the difficulty of establishing a single admissibility rule. After analysing the New Zealand case law, the author examines the relevant sections in the proposed Evidence Code, published by the New Zealand Law Commission in 1999, and she concludes by exploring some alternative legislative and judicial resolution of the issues.
Fifteen years after the New Zealand Law Commission rejected pre-trial recording of cross-examination, that proposal is back on the reform agenda. Drawing from research examining comparative pre-trial and trial practices in cases of sexual offending, this article discusses the backdrop to the debate surrounding pre-recording, including the provisions of the Evidence Act 2006 and the approach of the courts to alternative ways of giving evidence. The benefits and drawbacks of pre-trial recording of evidence for adult witnesses are canvassed – including practical, evidential and psychological issues – leading to the conclusion that rather than a presumption in favour of any particular alternative way of giving evidence, close consideration of the individual circumstances of each case is required.
This article discusses recent New Zealand homicide cases in which male defendants have sought to rely on the partial defence of provocation to excuse the killing of a man who allegedly made them the subject of unwanted sexual advances. The author argues that at least in cases in which such claims are unsuccessful, reference should be made to section 9(1)(h) of the Sentencing Act 2002, which renders homophobia an aggravating feature in sentencing. To the extent that section 9(1)(h) is not relied on, while provocation is successfully pleaded in some cases, the author concludes that gay male citizens are not afforded equal protection under the criminal law.
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