Should defence lawyers be able to bring up complainants’ sexual history in court?
They would argue yes; that there are times when a person’s prior relationships and interactions are relevant to corroborating their clients’ claims.
They would also dismiss the idea that lawyers intentionally throw thinly veiled aspersions in court about people's character, and thus their believability as victims of sexual violence; that the days of the short-skirt or too-much-to-drink arguments – viewed by many as true victim-blaming - are gone.
And they would say the threshold to bring evidence into the courtroom is already high, and relevance is decided by a judge ahead of time.
But those on the other side of the argument – like sexual violence advocates including some lawyers – say survivors’ previous sexual experience should be off-limits in court.
They argue things a person has consented to previously are completely irrelevant, as consent is not a one-off seal of approval.
A proposed law change currently going through Parliament would shake up the court system for cases of sexual violence.
The changes, drawn together by Green MP Jan Logie in her role as under-secretary to the Minister of Justice, include raising the threshold for bringing up sexual history, allowing complainants to give evidence over video link, and empower judges to jump in more readily to stop unfair questioning.
“The bill, if you think about it in a historical context, has been coming for a really long time,” says New Zealand Herald investigative reporter Kirsty Johnston.
“One of the biggest differences with this new bill is that - whereas currently defence lawyers are allowed to bring up the complainant’s sexual history with the accused – under the bill, they won’t be able to bring that up unless the judge has pre-approved it and unless it’s deemed directly relevant.
“So what they’re saying is that even if you’ve had sex with that person before, it doesn’t mean it’s directly relevant for this case. It doesn’t mean that you’ve consented; just because you’ve slept with them 100 times before, doesn’t mean you consented to this incident which you’re saying is sexual violence.
Johnston points out the threshold for bringing up someone’s sexual history with other people – their relationships with people other than the accused – is already high, and it’s difficult for lawyers to get permission to do.
She says the main driver for the changes is to encourage more people to report sexual violence, and to give them more confidence they will be believed, and not have their character attacked.
“Some of the reasons research has found they don’t report is that they find the experience of a courtroom degrading or terrifying, because as soon as they get on the stand they can be torn apart.
“It’s just about making that courtroom a slightly more welcoming place to complainants.”
The argument against bringing up sexual history in court has reignited in the wake of the Grace Millane case, in which her killer’s defence centred heavily on Miss Millane’s sexual experience and preferences.
The current proposed law change would not cover homicide cases.
But advocates want the proposed law extended to include all sexual or gendered violence against women, even when the victim is dead.
Defence lawyers are biting back at the idea – both for sexual violence cases, and against any extension of the changes – saying the evidence presented in the Millane trial was there because a judge had deemed it relevant to the defence.
And as Criminal Bar Association president Len Anderson said on RNZ’s Morning Report, “the lawyer has to follow the instructions of their client".