New Zealand Law Society - Law academics pinpoint barriers for sexual assault complainants

Law academics pinpoint barriers for sexual assault complainants

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Two New Zealand Law lecturers say sexual abuse complainants face obstacles in the legal system in their pursuit of justice.

Dr Brenda Midson, senior law lecturer at the University of Waikato and General Editor of the New Zealand Law Journal is concerned about the disparity in how the law and what she calls antiquated legal language treats women in relation to sexual assault in an online article.

She points to the re-emergence of one of the ringleaders in the Roast Busters case – where male teens boasted on social media about their sexual activity with underage girls - in a controversial television interview. In 2013 the police did not lay charges due to lack of evidence against any members of the group. Dr Midson argues “that prosecution decisions and societal responses to sexual offending may not be any more enlightened today, partly because of the way the law treats the issue of consent and classifies sexual crimes”.

Under s 128A of the Crimes Act 1961 a person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious. Yet, these provisions are open to interpretation by judges and juries.

“How, and on what basis, do they decide whether a complainant is “so affected” by alcohol that they are unable to consent?” Dr Midson asks.  Sexual crimes are classified as crimes against religion, morality and public welfare as opposed to murder and non-sexual assaults which are classified as crimes against the person.

In an article first published on Newsroom, Dr Zoe Prebble, law lecturer at Victoria University, questions the failure of limitation periods in the cases of historical sexual abuse. Dr Prebble says the recent Roper v Taylor costs decision is a “confronting reminder that survivors of sexual and gendered violence who seek redress through legal processes frequently find this to be a brutalising and unsatisfactory experience”.

Costs were awarded against Mariya Taylor as she failed in the substantive historical sexual abuse decision because her case was barred by the limitation period. The test requires that a plaintiff must prove she was of ‘unsound mind’ amounting to a disability which prevented her from suing within the limitation period. Dr Prebble says that we now know much more about the effects of abuse and trauma than we did in the 1980s when the incidents occurred. This kind of trauma can “affect a victim so profoundly that she is at a personal and psychological level incapable of suing,” she says.

Dr Prebble says the #Me Too movement means that women can speak up about histories of abuse and “demand that the legal system represent their interests.”