Friday, March 2, 2007

Honorable Men

Julius Caesar - the play by William Shakespeare - came to mind this week as Police Assistant Commissioner Clint Rickard stunned onlookers by saying that his co-accused Brad Shipton and Bob Schollum should not have been sent to prison in 2005 for the 1989 rape of a Mt Maunganui woman.
Rickard himself had just been found not guilty for the second time of gang raping a young woman using a foreign object (a bottle this time) with fellow former Police officers Shipton and Schollum around the same time period. It is probable that that utterance will cost Rickard his job. No senior Police officer can side with convicted criminals against the finding of a jury and expect to get away with it.
But it is also clear that an Assistant Commissioner with two rape accusations levelled at him has been contaminated in the eyes of the public. Julius said of his wife as he divorced her, the wife of Caesar must be above suspicion and the same is true of Assistant Police Commissioners. Most telling was the revelation on One's Close Up programme that Louise Nicholls, the woman who first pressed for the prosecution of Rickard, had received nothing but support from the New Zealand public despite being called by a liar by the defence attourneys.
But the issue in the minds of most New Zealand women, and indeed many men, is what does it take to get a rape conviction in New Zealand? What does a woman have to go through to get some form of justice?
In both cases Rickard's accusers had nothing to gain from having traumatic and disturbing assaults on their persons discussed and queried in open court. There are not too many people who want it known that they have had a police truncheon shoved up them.
On the other hand the principle of reasonable doubt is an important one. Rickard was facing several years in the can with people who would probably be quite keen to mete out a little "justice" of their own. To get it wrong is also a risk of injustice.
I have long contended that there are two problems with our rape laws.
The first is the rhetorical stretch, used by many defence lawyers, that a person found not guilty of rape has been proved innocent. Not guilty does not mean innocent. It would be more helpful if we had the Scottish option of finding a charge "Not proven". Not only does this leave the double jeopardy rule aside (allowing another trial if new evidence is found) but also allows a person to be found innocent if indeed that is the jury's intention.
The second is more controversial. In my limited experience rape victims are not necessarily interested in vengence. Most simply want to be believed and if possible an admission of wrong-doing, an apology and some form of compensation. Under our no-fault ACC system compensation for sex crimes is quite problematic. Most crimes are not reported and most fail because of the strict 'proof beyond reasonable doubt' rule for criminal proceedings. This means ACC ends up holding a second trial not of the accussed but of the applicant!
To that end it would seem fairer if rape victims could apply for legal aid to bring civil cases against their rapists. A civil case declares a result not on 'proof beyond reasonable doubt' but 'on the balance of probability' a more reasonable test when evidence often comes down to 'he said' 'she said' for the jury. A civil case would not result in anyone being locked up but would officially establish who semed the most credible and provide a basis for compensation. If Police felt there was enough evidence they could then proceed with a criminal case.
Rape is always going to be a touchy accusation. It is very private for both accuser and accused. False rape complaints are vicious and they do happen. But currently there would be few women in New Zealand who had confidence that our justice system provides a fair method of redress to rape victims. These suggestsion would at least be a start.

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