No one expects the NZ inquisition

[Kalidane]

Rape accused would have to prove consent under Labour plan

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11289979

 

 

If this happens, it appears we would require witnessed affidavits of both/all parties to a sexual encounter to mitigate the risk of being guilty of rape.  Surely they are trolling the nation with this?

 

Labour: Vote positive

#forabetterNZ

 

 

[Pseudonym]

Wow. That's a bit different. Although it's not just Labour - if you read the last paragraph, it says the idea was actually raised by National MP Simon Power, before Judith Collins crushed it. (Collins... crushing... see what I did there?! LOL!)

I'm struggling to understand how this process would actually work though. France and some other European countries use the inquisitorial system, don't they? I wonder how it works for them.

"But when you look at the volume of sexual violence cases and the 1 per cent of cases that result in a conviction, there is something wrong with the way we are handling sexual violation cases. The circumstances may well justify doing something radically different."

If that 1% stat is true, it does seem surprising, and maybe it indicates that too many people are wrongly being let off. But what should the "correct" percentage be? 100% - is everyone accused of rape always a rapist? Is it 50%? I don't think you can assess the accuracy of the justice system by the conviction rate.

[Kalidane]

Anyone who has studied law could run us through this issue I'm sure, as it's pretty much a first year issue; likewise a little of the local case law in rape cases.

 

No system can be perfect and there will be incorrect dismissals and incorrect convictions.  The existing burden of proof approach and evidentiary threshold means that it is very hard to wrongfully convict an innocent party.  This is extremely important.  

 

 

The only way to convict all guilty parties charged, is to imprison all who are accused.  The only way to protect the innocent from wrongful conviction is to dismiss all cases.  Anything in between has checks and balances.  I'd guess that the current approach does convict a high proportion of guilty parties and convict practically no innocent parties.  Switching to the inquisitorial approach sounds like we could expect to see a 5 to 20 fold increase in wrongful convictions.

 

 

I see now what the problem is.  Many people with strong thoughts on the issue believe that all rapists should be convicted and dealt with very harshly.  They want to maximise the negative outcome for the guilty.  I get that.  I'm perfectly comfortable with the guilty being shot or worse.  But the other side of the coin is protecting the innocent from wrongful conviction.  

 

Perhaps somewhat ironically, the greater the punishment, the higher the threshold of certainty must be, in order to protect the rights of the innocent.  This results in more guilty walking away - kinda the opposite outcome to what the 'hang them all' crowd are looking for.

 

As interesting as this all is, I think it's best left to law experts and the legislative branch, as this is simply too hard for the general public to form meaningful views on.

 

Hmm I knew I shouldn't have used google (USA numbers):

The most methodologically rigorous study to date, released in June, suggests that somewhere between 8 and 18 percent of men convicted of sexual assault may be innocent. The federally funded research project randomly sampled convictions in Virginia between 1973 and 1987, before DNA testing was widely available, and compared preserved physical evidence with the DNA profiles of convicted men.

 

So apart from the pro-tip of not being a black male in a predominantly white town, it seems we might want to be very very careful in doing anything that would increase conviction rates.  We will never have meaningful statistics in NZ for this sort of thing, but the wrongful conviction rate might be a lot higher here than what I had hoped for.

[Pseudonym]

Good post. (But what the hell were you doing, getting up that early on a Sunday morning to make it?!)

As interesting as this all is, I think it's best left to law experts and the legislative branch, as this is simply too hard for the general public to form meaningful views on.

Agreed. That's why National had got the Law Commission to investigate this, before Judith Collins presumably decided that even if they did recommend change, it wouldn't be publicly palatable so she cancelled the report. And actually all Labour is saying is that they'd like to see the Law Commission finish it.

As for the study, wouldn't that just show the wrongful conviction rates between 1973-1987, pre-DNA testing? I think it would be a fair assumption that since DNA testing came in, there'd be fewer wrongful convictions now. Not that it changes any of the general principles here.

[Kalidane]

...

As for the study, wouldn't that just show the wrongful conviction rates between 1973-1987, pre-DNA testing? I think it would be a fair assumption that since DNA testing came in, there'd be fewer wrongful convictions now. Not that it changes any of the general principles here.

 

 

Up since 3am - that was a big sleep in!

 

Ah yes you're likely exactly right there.  DNA testing made a huge difference to this sort of thing.

 

Hopefully it will be at least 3 years before we see this subject come up again...