Do we have a consistent approach? Sexual experience and reputation evidence in civil sexual harassment claims
The Employment Relations Act 2000 (ERA) and the Human Rights Act 1993 (HRA) both have legislative mechanisms governing the evidence of the sexual experience and reputation of a claimant in a sexual harassment proceeding.
The wording of s 116 of the ERA and s 62(4) of the HRA are almost identical. Section 116 of the ERA provides:
“Where a personal grievance involves allegations of sexual harassment, no account may be taken of any evidence of the complainant’s sexual experience or reputation”.
Similarly, s 62(4) of the HRA provides:
“Where a person complains of sexual harassment, no account shall be taken of any evidence of the person’s sexual experience or reputation”.
A legislative mechanism to control evidence of a claimant’s sexual experience or reputation is not a new concept in New Zealand. The first legislative provision that operated to control this type of evidence in criminal sexual cases was enacted by the Evidence Amendment Act 1977 with the introduction of s 23A of the Evidence Act 1908. This provision was slightly amended and carried through into s 44 of the Evidence Act 2006 (EA). However, s 44 of the EA only provides a detailed mechanism for managing sexual experience and reputation evidence in criminal sexual proceedings. Section 44(2) provides that in a criminal sexual case, as defined in s 4 of the EA, there is an absolute bar against evidence of the reputation of the claimant in sexual matters from being introduced. Section 44(1) excludes all evidence of the complainant’s sexual experience except with permission of the judge, which is to be given only if the proposed evidence meets the heightened direct-relevance test in s 44(3). The evidence sought to be introduced must be of such direct relevance to the facts in issue that it would be contrary to the interests of justice to exclude it. This provision does not extend to civil proceedings.
Currently, the ERA and the HRA provide the only statutory provisions controlling this type of evidence in civil proceedings. It is worth noting that there is no evidential mechanism that is of general application to civil proceedings; which might be thought necessary in a civil sexual abuse claim, where that claim is not brought under either the ERA or the HRA.
History of s 116 of the ERA
So how did such a statutory provision come about in the employment jurisdiction? In 1987, the Labour Relations Act 1987 (LRA) at s 210(1)(d) introduced the first statutory recognition of sexual harassment in New Zealand and provided a route for managing sexual harassment disputes in the employment context. At the same time as providing for recognition of sexual harassment in the workplace, the LRA also provided a mechanism for dealing with sexual experience and reputation evidence in a sexual harassment proceeding. Section 221(c) of the LRA provided that “neither the grievance committee nor the Labour Court shall take into account any evidence of the worker’s sexual experience or reputation”.
When the LRA was repealed and replaced by the Employment Contracts Act in 1991 (ECA), the wording of s 221(c) was brought forward, amended and included at s 35 of the ECA. In 1993, the wording of s 35 of the ECA was then replicated at s 62(4) of the HRA and eventually in 2000, the same wording was adopted in the current s 116 of the ERA.
Interpretation of the HRA and ERA provisions
On their plain meanings, both s 116 of the ERA and s 62(4) of the HRA exclude all sexual experience or reputation evidence relating to the complainant. Interestingly, there is no provision permitting judicial discretion to admit such evidence. The delicate balancing exercise set out in s 44 of the EA, with respect to sexual experience evidence in criminal sexual cases is not provided for in civil claims under the ERA or HRA. The most obvious problem with these civil provisions is that they also appear to exclude evidence that relates to the actual sexual harassment claim itself. This interpretive issue was dealt with by the Human Rights Review Tribunal (HRRT) in Director of Human Rights Proceedings v Smith (2004) 7 NZELC 97,425,  NZHRRT 1.
In 2004, the HRRT in Smith undertook a thorough interpretation of s 62(4) of the HRA. The employee, X, had alleged sexual harassment by another employee, Mr Smith. The crux of Mr Smith’s defence was that X was a willing participant in sexual conduct between them and that she did not find his behaviour either unwelcome or offensive. Mr Smith sought to introduce evidence of previous sexual encounters with the complainant as evidence of her willing participation in the conduct that was the subject matter of these proceedings.
The Tribunal’s interpretation of s 62(4) was that it could not be read literally. Despite what its plain reading seems to exclude, it does not prevent the introduction or testing of evidence that is directly relevant to the matters at issue in the current proceeding. In short, the Tribunal held that s 62(4) does not exclude evidence of a complainant’s sexual experience with the defendant if it has direct relevance to the controversial issues. The Tribunal held, the evidence must relate to the act, events or circumstances at issue, or be of such relevance to the facts at issue, or the issue of appropriate compensation, that it would be contrary to the interests of justice to exclude it.
Similarity with section 44 of the EA
The interpretation of the HRRT in Smith is similar to the approach taken by the courts under s 44 of the EA. A direct relevance test has similarly been introduced by the HRRT in relation to evidence about sexual experience with the defendant in those proceedings. However, it is fundamentally different from s 44 of the EA in that the interpretation of s 62(4) by the Tribunal in Smith only extends to evidence about the complainant and the defendant. There is still an absolute bar, absent of any judicial discretion or direct relevance test, against evidence of the sexual experience of the complainant and anyone other than the defendant in sexual harassment proceedings (a more stringent exclusionary rule than is present in criminal sexual cases).
Given that the wording of s 62(4) of the HRA is similarly present in s 116 of the ERA, it appears that the same interpretation will logically apply to s 116 of the ERA.
A dearth of case law
Given the legislative history dating back to 1987, it is remarkable that there have been no cases in the employment jurisdiction that deal substantively with s 116 of the ERA or its predecessors. There have only been two cases that touch on that topic. In Morrow v Idea Services Ltd  NZERA Wellington 71 the Employment Relations Authority acknowledged that s 116 existed but noted that no evidence of that nature was put before the authority in that case. In Air Nelson Ltd v C  NZCA 488 the New Zealand Court of Appeal responded to concerns raised by counsel for the appellant that the Employment Court Judge had inappropriately taken into account the complainant’s sexual experience or reputation. The Court of Appeal noted that while the Employment Court Judge’s conclusion on the complainant’s behaviour was unnecessary, the overall finding was not based on that conclusion and therefore was not grounds for reversing the Employment Court’s finding. There was no express mention of s 116 in this case. It does not seem that s 116 has ever been considered in any substance in the employment jurisdiction.
The impact on sexual harassment claims
There has been relatively minor judicial attention paid to both s 116 of the ERA and s 62(4) of the HRA. However, these provisions do warrant attention by lawyers, whenever dealing with a sexual harassment complaint or claim. The vast majority of workplace sexual harassment complaints, workplace investigations and personal grievances are resolved prior to any hearing. However, in the process of resolving such complaints there may well be evidence that a respondent or complaint will seek to rely upon that will bring into play s 116 of the ERA or s 62(4) of the HRA.
As pointed out by the HRRT in Smith, the purpose of s 62(4) is to prevent unfair harassment in court of the complainant by questions about their previous sexual experience. Although this evidentiary rule only applies during a proceeding, it will also be relevant to consider when assessing the position for any claimant or respondent. A respondent who wishes to refer to prior sexual experience evidence about a claimant, during any discussions, should properly be met with the exclusionary rules discussed.
In the employment and human rights jurisdictions, New Zealand legislation does adopt a consistent approach to dealing with evidence of prior sexual experience and reputation. The difference between this approach in a civil context and the approach adopted in the criminal context under the EA, may be more apparent than real. However, there appears to be a gap in legislative cover for any other civil claims involving evidence of sexual experience or reputation.
Maria Dew firstname.lastname@example.org is a barrister at Bankside Chambers, Auckland who specialises in employment law. She is convenor of the NZLS Employment Law Committee.
Christina Laing email@example.com is in her final year of an LLB(hons) degree at the University of Auckland and works for Simon Mount QC at Bankside Chambers.
Last updated on the 3rd November 2017