Law Commission recommends law change on complainants' previous sexual history

The Law Commission has recommended a legislative change about the admissibility of evidence as to the sexual experience of a complainant in sexual offence cases. It has recommended an amendment to section 44 of the Evidence Act 2005, which would require notice of an application for leave to lead evidence as to the sexual experience of a complainant to be given pre-trial and for the decision to be made pre-trial.

Green Party women's affairs spokeswoman Jan Logie said the changes alone would not radically improve the courts for victims, and called on Justice Minister Judith Collins to restart work on alternative processes. This work was shelved by the Minister in 2012. For more information, see Recommendations for sexual offence trials not to be implemented: Judith Collins.

The Law Commission rejected amendments proposed by Victoria University law academics Elisabeth McDonald and Yvette Tinsley, that would have required judges making decisions about the admissibility of evidence of the sexual experience of the complainant to decide whether it was in the interests of justice by taking into account specific matters including:

• The distress, humiliation and embarrassment the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions the complainant is likely to be asked;
• The risk that the evidence may arouse discriminatory belief or bias, prejudice, sympathy or hostility;
• The need to respect the complainant’s personal privacy.

They also rejected proposals which would have tightened the rules around the admissibility of evidence about the sexual experience of a complainant with the particular defendant; and that judges be required to give written reasons for decisions they make about the admissibility of evidence the sexual experience of the complainant.

The recommendation forms part of the Law Commission's review of the Evidence Act 2006. Justice Minister Judith Collins said the Government will formally respond to the Law Commission’s recommendations later this year.

Read the Law Commission's Review of the Evidence Act

Media:

'Spare victims in-court wrangle over sexual history, review urges', NZ Herald, 5/4/13

'Law change needed for rape cases', Stuff, 4/4/13

'Minister welcomes Law Commission report', Press release: Judith Collins, 4/4/13

Photo credit: iStock