Sexual Violence Legislation Bill

I present a legislative statement on the Sexual Violence Legislation Bill.

That legislative statement is published under the authority of the House and can be found on the Parliament website.

💬 Hon KRIS FAAFOI: I move, That the Sexual Violence Legislation Bill be now read a second time.

The Sexual Violence Legislation Bill will reduce the trauma that sexual violence complainants experience in court, while maintaining a defendant’s fundamental rights and making sure that the trial process remains fair. This bill is part of the Government’s commitment to reduce and ultimately eliminate family violence and sexual violence in Aotearoa. [Interruption]

💬 Hon Simon Bridges: Sort yourself out, guys.

💬 Hon KRIS FAAFOI: Thank you, you’ll get your turn. Just calm—just calm.

At this stage, can I also acknowledge my ministerial colleague the Minister for the Prevention of Family and Sexual Violence, Marama Davidson, and along with the work that I will do with her over the next three years, that will help to lessen the unacceptable secondary harm that victims and survivors of sexual violence may experience within the justice system. We need to ensure that when victims and survivors do reach out and when they do appear before a court, our justice system does respond and does no harm.

The second reading of this piece of legislation is timely because earlier today I had the pleasure of meeting the Chief Victims Advisor, Kim McGregor, and going through a number of issues that she wants to prioritise over the next three years and the way that we would like to work together to make sure that her mission in making sure that victims have more rights within the process is executed by this Government, which has made a great start.

Can I acknowledge the Justice Committee for their work at the select committee process and those who submitted, because these changes are critical to reducing the trauma that contributes to our low prosecution and conviction rates for sexual violence.

During my reading and the discussions around this bill, I was a little bit shocked about some of the stats that came out a couple of years ago from the New Zealand Crime and Victims Survey that indicated that 23 percent of adults here in New Zealand have experienced sexual violence in their lifetimes. Then when you narrow that down to women, that increases to 34 percent of adults. So if we can put that into context, if we know 10 people, roughly at least a couple of them will have experienced sexual violence in some way. And if you narrow that down to 10 women in our lives, a third of them, in some way, shape, or form, would have experienced sexual violence. In a country like New Zealand, I think those statistics are not great, which is why this Government, and the previous Government—and I want to acknowledge my colleague Jan Logie as well—has made a priority of making sure that we can prevent much family violence and sexual violence.

Now, when you piece that together with what we do know in stats, and also the numbers that we don’t know—the women that don’t come forward, who are scared about their victimisation and the re-traumatisation through a process, whether it be speaking up first or whether you speak up and then go through the court process, and who decide that that calculation is not one that they want to make—these changes are even more important. That’s why I’m happy to be speaking on this second reading.

The key changes within the bill do tighten the rules around evidence regarding the complainant’s sex life to ensure that they are protected from irrelevant and unduly invasive questioning. Now, I think I’ve had a discussion with the Hon Simon Bridges that that is a sticking point for the National Party, and I also understand it’s a sticking point for quite a large number of the legal fraternity. But I would argue that if we have a system where the adversarial nature that is set up prevents victims of sexual violence making that simple calculation that they should come forward or acknowledge that they should go to a trial and give evidence against a potential offender, it prevents them from doing that. Our system is not right, and we need to make sure that the measures, the processes within a court, while maintaining a fair trial, do not revictimise those victims of sexual and family violence. One of the things that certainly came through in the submission to this bill from Kim McGregor is that that is exactly what has been happening, not just recently but for decades.

If it’s OK, Mr Speaker, I do want to read from the Chief Victims Advisor’s submission to this piece of legislation to the select committee, because she said that—and this is directly from the submission—“Currently, the experience of giving evidence at trial is traumatic, often described by complainants as being akin to a second assault. One complainant … said that while she thought she was going to be killed when she was raped at least she would have been spared … [the trial process], as it was worse than the rape itself. When we compare that to current cases, we see little has improved for the complainants.”, the Chief Victims Advisor said. And a quotation from that person: “[the court system] … absolutely broke her, and she has never recovered.”

So to allow that situation to continue in our court process, to this side of the House and to other parties in the House, is not on. We now have the ability to change this law, and I am totally aware that other legal fraternity or others may have a disposition to parts of this law for pure legal reasons. But the law cannot continue like this if it is preventing victims of crime coming forward and having a fair day in court and to face an offender. Now, we’re not making any judgment about whether the offenders are guilty or innocent within that process, but to make sure that we have, through the whole process, comfort post a sexual violence event for people who are victims to come forward, have their day in court, and leave knowing that justice has been served—has not been something that’s been available to them for some time. I think it’s high time that for those people who have been in those positions, who haven’t had their day in court because of their unwillingness to put them through that situation and be revictimised, that day has come.

So, again, I don’t want to take up too much time of the House, but I thank the select committee for this piece of legislation. The changes within it will, I think, make sure that a fair day in court can be had, and those who are brave enough to have a day in court who are victims of sexual violence can do that in a way that allows them to have their say against a potential offender but doesn’t make them feel like they’re being victimised again. Again, this is a piece of legislation that has been a promise and something certainly in Labour Party manifestos for some time. I’m proud to make sure that it is progressed, and I hope it progresses through this House with the unanimous support of the Parliament in order to make sure the victims of sexual violence can go through the court process without feeling that they’re revictimised.

I want to say, first off, that I don’t get up to speak on this politically, and I don’t say that lightly. If this was about politics, actually, National would just sign up to this, because the intentions are good, it all sounds great, and I’m sure Kris Faafoi’s genuine in what he’s saying. I also want to say with, I hope, humility—I can’t say this about really much else in this Parliament—this is one area where I’m more experienced than any other MP. I was a senior Crown prosecutor who did jury trials and specialised in sexual abuse cases. I’ve done a lot of them, and I am still haunted to this day by some of the cases I did. It’s a deeply distressing area, it’s an awful area, and I acknowledge the statistics that Kris Faafoi’s put here.

But I want to speak directly to Kris Faafoi, the Minister in this area, and his officials, because I do hope—I fervently hope—they will make changes at select committee. And I say to Kris Faafoi, look, actually, most of this bill is fantastic. We sign up to it, we agree with it. It’s about helping complainants and victims. And I’m going to go through some of the things I think are really good in this bill and we support wholeheartedly, but there are two clauses in this bill where they are a mixture of unworkable and unjust. And, as a law, they will see innocent young men—and I say mostly young men—convicted in our courts, and that’s not right; that’s unjust. And I’ve said, much of it’s good.

The provisions in this bill around better methods of giving evidence for family violence complainants, child witnesses—that’s wonderful. I say, regarding the directions that judges will be instructed to give—and they’re already doing a lot of this—around the myths, the misconceptions; for example, that it’s only strangers that commit sexual violence—clearly nonsense. And juries do need to hear those directions—it’s good that it’s there—enshrined formally in a statute, and this law’s going to do that.

The added flexibility around victim impact statements and the greater optionality and choice, if you like, that victims will have to give their statement by video recording out of court, where the judge has the power to clear the court in certain cases—I think that is all great, and does go to what this bill’s meant to be about, which is preventing the re-traumatisation of complainants and victims in the court.

But there are two clauses that, as I’ve said, are unjust and unworkable—they’re just plain wrong. And the reality is nearly all the lawyers: the prosecutors, the defence lawyers, agree with what I’m saying. The judges think these clauses are wrong. And they mean, as I’ve said, that the accused—as he or she is in a serious criminal jury trial, rather than a defendant; mainly young men—won’t get a fair trial in some sexual violence cases where these clauses apply. And that means, actually, I haven’t done the maths—I could go away, but my estimate would be many hundreds of, basically, men a year won’t get a fair trial. Jonathan Eaton QC, an eminent criminal silk in the South Island says, “We believe that the bill could lead to significant injustice, particularly for the more vulnerable members of our society, such as youths, members of minority populations, and those with diminished capacity. We already have too many young men and women in our prisons who should not be there.”

And so, let me run through those clauses. I’ll try and do it briefly. They’re not simple areas, but the first is clause 8. It renders presumptively unlawful evidence of any sexual experience by a complainant with the accused. And I just simply say to Kris Faafoi, the law’s already strong enough in this area. A defence counsel can’t just come along to court and, on a whim, start asking about the prior sexual experience of the complainant. They need to have the judge’s approval and sanction to do that, and it has to be relevant—and not just relevant, highly probative—to the guilt or the lack of guilt—I won’t say innocence, because that’s not the criminal standard, but the non-guilt of the accused. But here, we’re limiting the evidence, even where it is relevant and probative to whether the accused should be acquitted. In the New Zealand Bar Association’s submission to the select committee, they talk about, in many cases, details of previous consensual sexual activity between a complainant and defendant will be of direct relevance to those allegations before the court. By way of example, a complainant’s consent to sexual—

💬 Angie Warren-Clark: How so?

The member’s yelling at me, “How so?” I’ll tell you how so, and they give an example: “By way of further example, a complainant’s previous consent to certain practices similar to the activity complained about, e.g. bondage, may be of particular relevance to the fact-finder.” As the House of Lords in the United Kingdom said, as a matter of common sense, a prior sexual relationship between the complainant and the accused may, depending on the circumstances, be relevant to the issue of consent. [Interruption]

💬 DEPUTY SPEAKER: Order! Sorry to interrupt the member. It’s really difficult, when you’ve got a barrage coming from my right, to hear the member, but he’s got a right to speak.

Thank you, Mr Speaker. I accept it’s an emotive issue, but it’s an important issue, and I would ask for some respect while I make serious points that I think are incredibly important. Really all I’m saying on this clause is that it will be made artificially harder for the accused—who have rights too, by the way, Louisa Wall—to put their defence and for juries to get at the truth.

The second clause is clause 14, and what that does—and I’m really, really rushed, because there’s more I want to say on this important matter, but what that effectively does is say that, in most of these cases, it has to be pre-recorded evidence some year or more before the case. And I can tell you, as a prosecutor, the Crown has all the resource. There is a complete inequality. And for a defence counsel well over a year before the trial to have to have all the ducks in the row, to put that case, to put the defence fully, is basically impossible.

This is entirely unworkable. What it’s actually going to mean, Louisa Wall, is that judges and defence counsel will informally agree, and the victim will come back to court and give evidence twice. They will be re-traumatised, I believe, by this bill, and the clause in here that is entirely unworkable. If it is workable, frankly, it’s even worse. If it is workable, what it does is do away with the right to silence—a centuries-old right for accused in court cases. Do it once, do it right.

In the three or so minutes I’ve got left, we could be cynical about lawyers, but the reality is here, they nearly without exception have lined up against these two clauses, because they know that they are wrong. And personally, I want to be clear: I came to this Parliament and I was going to read to you from my maiden speech—I won’t in the interest of time. I only spoke on one primary issue of political substance and policy—it was the rights of victims, and the need for redress, because, actually, the cases I’ve done haven’t seen justice in this area.

The statistics are abysmal, and there are things we did change, and we need to go further and do more, but I say to this House that you can’t achieve justice for victims by performing an injustice on the accused—it just is not right. And the fixes here are actually relatively easy and minor—they’re doing away with clearly wrong clauses in this bill. William Blackstone, a jurist—I don’t know; two or three centuries ago—says it’s better for 10 guilty people to escape than one innocent suffer. I don’t know about the ratio, but as I say, you don’t do right by doing wrong to accused in these cases, and I worry greatly about that.

I say to this House, don’t let the apple here rot. Don’t let the little bad bit affect the great good that’s in this bill—cut it out, and we’ve got that opportunity to do that at committee of the whole House. We have the opportunity with the two wrong clauses that will see young men go to jail unnecessarily, wrongfully in this country, to amend those clauses. That would leave a bill that the National Party could wholeheartedly support and that will do some good and will ensure some victims aren’t re-traumatised.

I want to say, because now that I have raced through I have just got a few seconds for a couple of other things. It’s remarkable to me that, on the one hand, the Government’s doing the Criminal Cases Review Commission to try and get those wrongfully convicted, and yet, on the other, they do this. I also say to David Parker, it’s entirely wrong that the New Zealand Bill of Rights Act report here gives a clean vetting. There’s not a lawyer worth their salt in New Zealand who could do that with these clauses in this bill. We support this bill right now. We hope, though, there’ll be sense—some practicality, so that people aren’t wrongfully convicted—through Supplementary Order Papers at the committee stage, so we can support this bill at third reading.

Tēnā koe e te Māngai o te Whare. Huri noa kia ora tātou, ōku hoa kaimahi i roto i tēnei Whare Pāremata.

[Greetings Mr Speaker. Greetings to all of my colleagues in this House.]

I want to put up front that everything we do in this House is important—is important for democracy, is important for communities, and has an impact on the real everyday lives of our families and our people. This piece of legislation—it just came to me as I was sitting here listening to Minister Faafoi, to Mr Bridges. It has hit me how incredibly important, how significant, these changes are, and in particular that I am standing here also for the first time in this House with a direct relationship to my ministerial portfolio as the Minister for the Prevention of Family and Sexual Violence and a vision that we can and must eliminate violence from our beautiful country. That is feeling heavy. That is feeling like a huge responsibility, as it should—as it should. I welcome the robust debate. Upholding a fair justice system for all absolutely is deserved of robust debate about every single word change, about every single clause. So I acknowledge the heavy significance, the important significance, of this work for fair justice.

We all, I think, believe in a justice system that actually delivers justice, that creates healing and restoration for everyone involved, that delivers accountability for all involved, and that, most importantly, again—and I cannot say this enough—upholds the dynamic of a fair trial and natural justice; and that all people, everyone who comes before the justice system, should trust in that system, should have faith, and should be taken seriously, no matter what perspective of harm or an event you are coming from.

So this legislation, therefore, is primarily about improving what has been a flawed system for ever, what has harmed victims for ever. We know, in fact, that when we re-harm and re-traumatise victims in our system, that has no benefits for anybody—not for anyone, including defendants and our families and communities. So this legislation is trying to bring back some balance, some fairness, and some actual justice in the system. I must acknowledge my colleague and former under-secretary Jan Logie, who, for our part in the Green Party, has worked on deeply, has cared about, and has carried the responsibility of the legislation up until I have had the honour of being able to work closely with Minister Kris Faafoi, which I look forward to and am inspired by his values and his vision for not just this legislation but for the broader work of reforming the justice system.

As I’ve said, there is injustice now, and we cannot conflate a dear goal, a goal that is dear and passionate to my heart, which is to turn towards restorative, truly restorative, and alternative justice systems that really do call for accountability and put victims at the heart of all processes—we cannot conflate the changes in this law with the goals which I also hold dear about an overall decarceration of our country to also bring better safety for all. We mustn’t let that conflation happen, as I heard some clues of, as I heard some hints of, in the previous speaker Simon Bridges’ submission just now in the House.

So I acknowledge, as a Māori woman, that sitting alongside our overall reforms we know we must remove the systemic racism from our justice system. I need to acknowledge that so that people are aware, so that my communities are aware, that I hold that through the entire passage of these justice and legislation reforms. System flaw—system flaw—is what we are focusing on here. When we have a system—and why I will quickly pick up on some of the particular clauses of the bill amendments—that further harms victims, it ends up in people not trusting. It builds harm upon harm. It creates an understanding that people should not reach out, should not report, will not be believed. In fact, the real impact of having a justice system which upholds that mistrust is actually the ongoing nature of intergenerational violence. That is actually what the real impact of having a flawed justice system that treats victims terribly is: the impact of ongoing intergenerational violence as well.

So from the submissions—this is the second reading—I too am going to thank and refer to the submission of Chief Victims Advisor to Government, Dr Kim McGregor, who pointed out—and actually referred to my colleague Jan Logie—that “the 1980s was primarily convicting stranger rapes which did not reflect the common occurrence of partner, acquaintance, or intrafamilial rapes experienced by many sexual violence victims/survivors.” Those are myths that we need to be able to correct, and turn our entire nationwide dialogue towards the actual true understandings of what sexual violence actually is, who commits it, and what the actual impacts are.

I’ll go back to the particular clause that relates to that part in Dr Kim McGregor’s submission. Oh, I also wanted to pick up on part of her submission that also highlighted that the research, which we know is unacceptable, points out “approximately 34% of women and 12% of men, and one in two trans people report experiencing sexual violence in their lifetime.” I wanted to make sure that we had an understanding of how far too common and serious this is.

What that means, then, is some of the key changes in the bill—and I wanted to pick up particularly on the key change around requiring judges to direct the jury on any myth or misconception relating to sexual violence that they consider relevant to the case. And we know—we know—it is clear that, unfortunately, those myths have been perpetuated and strengthened in all sections of our community and society, including in the courtrooms. That is absurd and should never have been the case. I welcome that. I welcome all of this legislation and the amendments, but I particularly focus on that and ask and, I think, congratulate that my understanding is that—[Bell rung]—judges have committed to further and ongoing training to make sure that they even have that understanding in the first place so they can correct it in their own courtrooms, because I know that is not necessarily always the case. Gosh, I’m out of practice and this time goes fast.

I’ll pick up on one other particular clause. Oh, by the way, the changes in the select committee strengthened this bill, and I thank the Justice Committee for making it even safer for victims, through this legislation, to appear before our justice system.

One particular clause that I cannot talk about this bill without focusing on is the clause that removes the arbitrary mention of a person’s sexual experience and disposition to protect complainants from unduly invasive questioning. It was absurd that this was ever allowed in the first place. This has contributed—contributed—to ongoing rape culture that we have had for far too long in our country. This was—[Interruption] Absolutely. It was absurd. Yes. Yes. So I really wanted to make my point of particular support for that piece of legislation. Goodness gracious, where have I come to?

So I welcome the bill’s amendments, and they are directly related to my visions to eliminate family violence and sexual violence. This works in cooperation with my vision for transforming, again, the entire flawed sector. I’ll finish on this: this should also be seen as prevention work—that when we can fix the flaw in this justice system, we will prevent further harm. I welcome this bill. Thank you, Madam Speaker.

In rising to speak on the Sexual Violence Legislation Bill, I want to begin by acknowledging victims and survivors of sexual violence. Unfortunately, there are far too many of us. In New Zealand, we have very high rates of sexual violence victimisation. This affects all people in society, but, in particular, it does affect women. Speaking as a woman, I know that I have friends, I have family members, and I have my own experiences of sexual violence, and I know this makes me just like everybody else, and that should not be the case.

So I stand to say that, yes, as a Parliament, we should do everything we can to reduce these appalling rates of sexual violence, to reduce the shame and traumatisation that comes with these incidents, to ensure that those who perpetrate sexual violence are brought to justice, and to ensure that where people are victims of sexual violence, they face a legitimate and sure way to get justice. We know in this House that right now, that too often isn’t the case. We know that most people who survive sexual violence will never tell a court. In fact, many will never tell the police. Many won’t even tell their best friends, their partners, or their family members. So if we are to bring perpetrators of this criminality to account, we need to do everything we can that is reasonable to remove the barriers to justice.

So that is why National, in Government, made many steps in this area. Sexual violence was an area that, in particular, I want to acknowledge the work of my former colleague Amy Adams, who, as the Minister in this area, progressed a number of sensible initiatives to improve front-line crisis response for victims, to improve harmful sexual behaviour services, and to provide more help to victims. This is the record that National brings to this House.

We also bring an openness to this bill and what it is trying to achieve, because we agree that too often, the court process is traumatising. We know that for every 100 sexual violence incidents that go to the police, only 31 end up in court, only 11 end in conviction, and only six end in imprisonment. We don’t like those numbers, because we believe perpetrators of crime should face full justice, and we know that the court process can be incredibly traumatising.

So I do want to, in this speech, highlight the aspects of this bill that I stand strongly in support of and that mean we will be supporting it to the committee of the whole House, because we do believe that there is enough in this bill to justify strong support for it. They are, in particular, requiring judges to intervene in inappropriate questioning of witnesses, because we know that where that is happening, it is a revictimisation that is not necessary to further the course of justice; it is simply a way of humiliating witnesses, and we believe that that is wrong.

We think it is right to include a witness’s vulnerability as one of the factors a judge may consider in determining whether that questioning is unacceptable. We think that’s right and a proper discretion for judges to have.

We also think it is correct to entitle sexual violence complainants and witnesses to give their evidence in alternative ways. Where we can still have a fair trial, we should make it easier to shield witnesses from some of the stress of appearing in the witness box.

We commend the measures in this bill to require judges to direct the jury on any myth or misconception relating to sexual violence that they consider relevant to the case, because no one is asking for it—no one. Any implication that they are is just wrong, and a judge should say it.

We support measures to allow the court to be cleared of the public when a sexual violence victim impact statement is presented. We think that enhances the dignity of the victim, and we think it is right to further clarify that victim impact statements may be presented to the court in alternative ways.

So, make no mistake, here on this side of the House, we support the rights of the victims of sexual violence and we support reducing the trauma of the court process for those victims.

When we deal with issues in Parliament, it’s not always as easy as saying what we intend to do. We need to look at the detail and the implications and the other effects of the decisions we make here, and we accept that the Minister and his colleagues have presented a bill in very good intention to make progress on these matters we all agree are important. But we are concerned that in doing so, and in seeking to increase the rights of victims here, there are two other critically important principles that are being put at risk by just two measures in this bill. Those principles—I just want to remind the members of this House how important they are to all of us. They are the right to a fair trial and the right to natural justice.

Just as I spoke passionately of my defence of women and victims of sexual violence and of those who have survived, I am also my brother’s keeper and I am also someone who wishes that anyone accused of a crime may have the right to mount a sure defence. So it is for that reason that National will be putting forward two sincere Supplementary Order Papers (SOPs) which we believe will better strike the balance required here of ensuring a right to a fair trial.

The two areas in which we wish to do that, my colleague the Hon Simon Bridges has outlined well and in some detail, and I want to quickly go over them here. The first is around pre-recorded cross-examination. The bill as introduced would make that an option in all sexual violence cases.

Now, the Justice Committee, who heard submissions on this aspect of the bill—and I want to commend both the members of that committee and those who submitted to it—heard that the reason that you should keep that pre-recording of cross-examination rare and exceptional, rather than every time, is that it has the significant potential to deny a defendant their right to a fair trial, as protected in our New Zealand Bill of Rights Act. That is because recording affords no opportunity for the defendant to question a witness based on the evidence that comes to light in the course of the trial. Not only that, but in practical terms, submitters highlighted that pre-recording is inconsistent with the right of a person to be present at the trial and to present a defence.

Finally, as my colleague Mr Bridges outlined, we did hear that there is considerable potential for an adverse and unintended consequence of this, given that the existing right of recall under section 99 of the Evidence Act will remain on the statute book. So it could be that victims of sexual violence—given this right of pre-recording—find themselves hauled back into court anyway. So it doesn’t serve its intended purpose, while also putting the right to a fair trial at risk. It remains possible that a witness will have to be cross-examined again later at the trial, and it will also work against the stated aim to reduce the extent to which that complainant is re-traumatised. So we have concerns about this measure, and we submit to the House that you examine our SOPs here carefully.

Second, we have concerns around the admissibility of evidence in relation to a defendant’s sexual history with their witness. It is the case at the moment that a judge has discretion as to when this sort of evidence is admitted. The Evidence Act already states that no evidence or questions can be put to a witness relating to sexual experience with any person other than the defendant, and the bill changes that so that unless a judge gives permission, no evidence can be given and no question put to a witness that relates to sexual experience with the complainant, and we think that this, potentially, could, again, diminish people’s rights to a fair trial.

So National cares strongly about the rights of victims of sexual violence. We also stand in this House to defend the right of every New Zealander to a fair trial and to natural justice, and we submit to members opposite to hear our call on these SOPs.

Thank you very much, Madam Speaker. First and foremost, I would like to acknowledge the work that has been done to date. When I first joined the Justice Committee, it was Amy Adams who had done work in this space before, and I acknowledge that work that’s happened. I know that Jan Logie has worked tirelessly in this space for an incredibly long time and has been a really useful person as the select committee process went through. I’m proud and pleased to see that Marama is continuing to take on that role in her new ministerial duties. I’d also like to acknowledge my fellow female select committee members, Meka Whaitiri and Clare Curran, who were very diligent in scrutinising some of the detail and ended up, I think, making this bill a better bill and a stronger bill than it was initially, and by taking further consideration to victims.

I will quickly spell out what this bill does in order to make the clear points that I wish to. It aims to tighten the rules around evidence regarding a complainant’s sex life to ensure that they are protected from irrelevant and unduly invasive questioning, which we know does happen. It will also allow complainants in sexual cases to give their evidence in other ways, and this has been a significant factor in the past. Pre-recording of evidence, we know from research, makes it far more likely for complainants to give evidence and for that trial process to be far less traumatising. It also requires judges to intervene if there is inappropriate questioning—so this would go to the sexual history, to what the victim was wearing at the time, whether the victim had had a sexual history with the complainant. I know in some instances judges do do that anyway when questioning becomes unduly forceful, but in this legislation it will require judges to intervene at those points in time. It will also extend the availability of communication assistance to any witness who needs it to understand questions further, so that they’re more familiar with the court process and the cross-examination process that they’re undergoing.

We received 81 written submissions, and 34 of those were delivered in person during the select committee; 57 in general supported and 10 expressly opposed this bill. If I can generalise, the victim statements that we heard were harrowing. We heard firsthand people’s experiences of the court system, and, essentially, what we were told was that being cross-examined by defence lawyers was almost unanimously described as the most traumatic aspect of the justice process, with many saying they were unprepared for how distressing that process actually was. One in particular I remember said that they would not have gone through the process had they known how bad it was.

Some victims said that they wished they had never reported the crime because the outcome for them was not worth the efforts, and some have even complained that they were worse off because they reported the crime. This goes to the heart of the problem that we are getting at right now, that our reporting rates for sexual violence are so incredibly low that we have a justice system that perpetuates that low reporting rate, because people feel further traumatised by the cross-examination process, amongst other parts. They find it dehumanising and demeaning, and so how can we expect our rates of violence reporting to increase while we have a system that does this?

I think, at the same time, as Opposition members have pointed out, we need to balance that out with the right to a fair trial, and we most definitely heard that evidence. We heard that from the legal fraternity during select committee, and many of those submissions came forward and made it incredibly clear that they were concerned about how that would play out. While the New Zealand Law Society supported the efforts to ease the burden of giving evidence on sensitive complainants, it did note that the legal profession is divided with respect to whether proposed reforms strike the right balance. Generally, professional legal organisations and individual lawyers expressed concern that the bill erodes fundamental principles of law and the defendant’s right to a fair trial process, and a lot of that went in around that ability to question somebody in a live situation and not have the pre-recording, which—as members have pointed out—can sometimes happen sometime prior to when the trial is.

I was really heartened by the advice from officials. They were of the view that the system does do further harm to those who are seeking justice, particularly in relation to extremely serious alleged crimes, recognising that sexual violence complainants often are re-traumatised by the court process, and they believed that it was in everybody’s interests, the whole of society’s interests, for the process in sexual offence trials to be fair to ensure that those outcomes are robust, and I think that is critical in this space.

Some of the more interesting submissions we heard were actually from those NGOs or support agencies in terms of the ones that do the wraparound support after a sexual violence offence had occurred, and the underlying theme of all of those submissions was a strong need for societal and systemic change in terms of the way we treat these things. We know that we have an adversarial justice system, and it’s important to hold things up to the light to make sure that they are right, but we need to seriously take a look at how we do that when it’s stopping the system from reporting cases. So this is just one step of reforming a justice system that needs to not just treat victims like they are a piece of evidence, because that is exactly how they are treated in our court system right now. We need a system that enables women, men, and children to have the confidence to know that they will be treated with dignity when they appear in a New Zealand court of law, that they have the right to be treated with respect, and I am concerned that that definitely does not happen adequately now.

I’m looking forward to this bill being enacted, I’m looking forward to getting agreement across the House on something that is so critical, and I look forward to a brighter day in New Zealand’s judicial future, so that we can have a justice system that does do better by victims of sexual violence. This bill does address some incredibly longstanding issues for complainants, but not at the expense of the overarching and fundamental necessity of having a fair trial. I do believe it gets the right balance between both of those views that we heard in submissions. Fair processes for all court participants and robust outcomes are the most important we can hope for, for having a fair, balanced, and human justice system. I commend this bill to the House.

Thank you, Madam Speaker. I just want to acknowledge the last speaker, Ginny Andersen, for a really great contribution to this debate. It’s a real pleasure to get the opportunity to speak on this bill, which has been an extraordinarily long time coming. I think back to the Hon Justice EW Thomas in the mid-1990s writing an article slamming our failure to protect rape victims in our court, acknowledging that we were harming them through that process and calling for action.

In my nine years or more in this House, if I’m honest I have never seen a piece of law that has such a strong evidence base as this piece of legislation. We have two Law Commission reports calling for every one of the provisions—every one—in this piece of legislation. We have overseas experience of implementing the provisions that are being contested, as well as the others, that we can find out what the impacts of and know that that will not cause unintended harm. We have an entire tome of legal research called From “Real Rape” to Real Justice. And we have so many surveys and reports telling us in detail of the harm that our laws, that we responsible for in this House, are causing victims, their whānaus, and our communities. They are harming us.

I would be surprised if there are many members in this House who haven’t had a conversation with somebody, even including other members in this House, about times when they advised or made decisions themselves not to report, because we know too much. We are in this House responsible for the knowledge that we hold, and we get to change that reality by the decisions we make here to make that process safer.

The Law Commission in their work—directed initially I think by the Hon Judith Collins and then reinitiated by the Hon Amy Adams, following up on from the work of the Hon Simon Power—led to and acknowledged that our courts were revictimising and lowering reporting rates because of the experience of victims in our court.

I was pleased to hear Simon Bridges say that this is not political. The history of this work is not party political, but it is personally deeply political for many of us in here and in our communities, and it is solidly—solidly—based in evidence.

I do just want to take a couple of the comments from the 2018 Gravitas survey of experience of victims in our court process—sexual violence victims in our court process—and one of them saying, “Overall it just sucks. It really eff’n sucks and you don’t feel like anyone believed you or wants to believe you. It’s too much hassle. It takes too long. It was shit.” That is the experience and what we are currently doing to people who’ve already been deeply harmed.

The other comment that really resonated for me was: “The law totally let me down. The law in New Zealand totally let me down. The police feel the law let me down. The prosecutor felt the law let me down. But their hands were tied because they had to work within the law. The law does not care about victims of sexual violence.”

I do want to take issue with Simon Bridges in the comment that the entire legal fraternity and judges are against this. It is just simply not true. The Law Society said there is a division in opinion. The judges have said to me that they want to see this happening. They describe our current laws as antediluvian. The Law Foundation did the consultation with everyone—those who’d experienced the system and those who are players within it, defence, prosecution, and judges, and they recommended these changes. And to the point that this may be undermining the basic New Zealand Bill of Rights Act, well, I think the Law Commission might have considered that in their two reports. I don’t believe they would have made recommendations that undermined the right to a fair trial—I really do not.

The truth is it got a clean bill of rights vet. Simon Bridges may disagree with that, but that feels disingenuous to say that that’s not valid and that his opinion is more valid than their work, backed up by the Law Commission. The truth is that the law committee heard those—you know, the defendant lawyers are very persuasive, I’ve got to say, in their evidence, and they were disturbed and wanted to make sure that actually there were not bill of rights concerns, and they sent the evidence form the defence lawyers back to get a second check, and it came back clear.

So I want to just reassure everyone in this House that there are no implications, negative implications, to the right for a fair trial in this. In fact, some aspects of this deeply strengthen the right to a fair trial. We are bringing in communications assistance to enable every single person, including the defendant, to be able to make sure that they understand the questions that they are being asked—pretty fundamental to the right to a fair trial, but not a reality at the moment. We, on this, and being driven by the desire to make sure that we’re challenging sexual violence, don’t see the defendant being able to understand the questions and get support to answer them as a threat to the right of those victims.

I think it’s pretty sad that some in the defence community see that victims getting protection is a threat to the rights of the accused. It doesn’t work like that. A fair trial is a fair test of the evidence. It is not giving free licence to bully, to intimidate, to rely on myth, and to confuse a witness, but that is a normative practice in our courts at the moment, and that is what this piece of legislation is starting to change.

And to those that say this is just going too far, I’d say that one of the researchers in this area, the hugely respected Jan Jordan, criminologist, is saying “Much of what is being mooted in this legislation could be viewed as basic rights that should have been recognised years ago.” Actually, I’m sad to say I would love to have been completely transformative, but actually we’re just getting somewhere towards catching up with other countries around the world.

On that point, the prerecording of evidence was trialled in Western Australia in 1992 and then progressively rolled out around the rest of the country after they found that it did not impinge on the right to a fair trial. UK legislation in 1999, Scotland in 2019, and I understand that defence lawyers in some of those countries thought the sky would fall in and that it would undermine the right to a fair trial, but guess what. Now checking in with them, after it’s been implemented, the sky had not fallen, and in fact there were some reports that that process had benefited their clients, because actually some of the evidence when the defendant was being asked inappropriate questions by the prosecution—those questions got edited out so the jury was not unduly influenced the other way. I do not see that as impinging the rights of complainants in our courts. I see that as positive support for the proper rights to fair trial.

In terms of the point around the sexual history, this is just mirroring what’s in the UK. The view that actually there is a threshold and it evens up the threshold for sexual history and history with somebody other than the defendant, it’s just making that consistent across the two. It is a test of relevance. It is not ruling out, as others have suggested, all evidence. This has been implemented in the UK and they found that some evidence still gets through, of that history. It is critical when one of the key reasons, apart from the awful process, that people don’t report it is that they blame themselves—they think that their own experience of drunkenness or whatever meant that it wasn’t rape. We have to send the damn clear message that it is, that consent is every time.

Thank you, Madam Speaker. I stand before you on behalf of the ACT Party on the Sexual Violence Legislation Bill. It’s important that we do have this bill and we do have the debate because improving the justice response to the victims of sexual violence is very important. And I think, across the House, we hear that and we also see it.

This bill will make amendments to the Evidence Act 2006. It will give or allow different ways for evidence to be given, and it has been shown in the past that we did do something about the way that evidence was given, so that victims felt that they could have a voice and feel secure in delivering it. So allowing a video before trial, or having a person shielded in the courtroom, or even being able to deliver their evidence from outside of the courtroom, is all essential in order for a victim to be able to be heard. Because not only can reporting an incident of sexual violence be traumatic, it’s also about presenting the evidence once you have reported it, and our colleagues across the House have already demonstrated from submissions that they have received, the trauma that some of the victims feel again and again, as they speak to people about what has happened to them. Going face to face, often with the perpetrator or the offender, can be a harrowing, scary, and traumatic experience, but this bill does give some comfort. It helps to relieve some of the anxiety that a victim would feel, and ultimately it should minimise some of that trauma.

When we see the low prosecution and conviction rates, we know that we have offenders out there that are not being held to account for their actions. When we have a third of New Zealand women—and that’s just the women stating that they have experienced sexual violence—but we’re not seeing that transferred into our court or justice system, then we definitely have to do something about it. Victims will come forward if they feel secure enough, and I have a very close family member who has experienced sexual violence and who did not speak out, who did exactly what you have stated and said that it was her fault, and when the perpetrator was caught, after raping other females, she then blamed herself, because she thought that if she had spoken up, maybe others wouldn’t have been raped. The whole idea that we can make this system accessible to our victims is important, and I believe that this bill does start to do that and address it.

The ACT Party want to encourage a system that does look after the victims, the vulnerable, and helps to give them the courage to speak out. It’s often, we find, with sexual offending that we have repeat offences, and it’s not lost on the ACT Party that the three-strikes system is looking to be thrown out by the Government, and that system, for this perpetration, is actually really important to make sure that we also go after the offenders and make sure that they don’t perpetrate their crime over and over and over again. This bill and the three strikes can definitely complement each other going forward.

The importance of this bill is about reducing the secondary victimisation and trauma when we talk about the video evidence. We do have concerns as well about clause 8 and clause 14. It’s not that we don’t want the victims to be able to pre-record, but we do need to make sure that there is that fair trial aspect. Further to that, clause 14, is where a victim may have to give their evidence again. And none of us wants to see that, where a victim ends up being re-traumatised because the bill that we’ve passed in this House didn’t cover that off for them, didn’t make them that extra bit safer. So we do need to look at that in the committee of the whole House and make sure we address that issue.

There are benefits and good health outcomes of this bill. It will help reduce mental illness for those victims who have struggled to understand what has happened to them and what to do about it. Some of them get post-traumatic stress disorder, depression, anxiety, and some even attempt suicide because they don’t know how to deal with this. Victims suffering mental illness as a result of being re-traumatised are more likely to not get employment, to go into their own little shell and to actually move away from the family support and help, because they just don’t know how to deal with the issues themselves. The justice system should be there to support the victims.

There are obvious concerns, as I mentioned, but there are also some very good points in this bill. We see that, having a pre-record, we already have some rules set on how to go about doing the pre-recording, and defendants will still have access to all of the transcripts, and they’ll still have lawyers present when evidence is given. And importantly, they get to choose who the lawyer is that will cross-examine on their behalf. The onus of this bill is also put on those that work within the system to advise the victims of what they can have to assist them. This includes the victim impact statements being delivered by video rather than by being done in person. Now, this is quite important that we have victims actually being told what their options are, being included as part of the process.

We have and need a just and robust system for all, and the victims should not be revictimised. We must never forget the victims. They should be at the forefront of our justice system, but not at the expense of a fair trial. So I’m hoping that, in the committee of the whole House, we can address the concerns that the Opposition have made to clauses 8 and 14. But, in the interim, the ACT Party is happy to support this bill, because we believe the heart of the victim belongs in our justice system and we should be looking after them. Thank you, Madam Speaker.

Madam Speaker, thank you for the opportunity to rise and to take a call on the Sexual Violence Legislation Bill. I want to thank, actually, all the speakers across the House. I think there have been some really thoughtful respectful contributions from across the House and that’s wonderful to see. I want to especially thank Jan Logie for her powerful speech but, in particular, clarifying that there are a spread of views across the legal profession about one of the issues to hand, and as a member of the legal profession I think that’s important to note. I also think the other point she emphasised, which is critical, is that the proposals set out in this bill come from two reports from the Law Commission—that is significant.

There’s data that informs legislative reform that signposts that something needs to change soon. Then there’s data that is horrifying and it highlights that something significant needs to change now. Several people have referred to these statistics, but they are horrific. The victim of crime survey tells us 23 percent of adult New Zealanders will experience partner violence or sexual violence at some stage in their lives; the figure is 34 percent for women. One of the really worrying figures is the low levels of reporting of sexual violence—at 94 percent not reported to police. We know the data, but again, as my colleague pointed out, we know so well what’s happening in this room as well.

The bill stands also as an acknowledgement, in my view, of the Me Too movement, where we saw a cascade of painfully recounted stories of violations of rights, openly shared, some for the first time in decades. We learnt, in my view, about entire generations and new generations, many women who had no faith in systems of reporting, who looked at a system ill-equipped to respond to the raising of a complaint and said no thanks, they would prefer to live in silence instead of have some form of justice.

One of the things the bill addresses is the problematic use of past sexual history as evidence. And to quote from a well-written article by Kez Bhola-Dare and Jamie Fletcher that I’ve been reflecting on, they say, “It is argued that prosecution using a complaint’s past sexual history [as] evidence is both morally and legally wrong. Introduction of such evidence is largely used as a tactic to undermine the credibility of the complainant to the jury. This plays on an old-fashioned myth that the more a woman consents to sexual activity, the less serious one should take their claim of not offering consent to one particular sexual activity. It is analogous to rape myths that paint a woman’s morality based upon their choice of clothes. Morally though a woman should not be found to have given consent solely because she has previously done so. In this sense, every incident of [consent] should be judged upon its own merits and gain no legitimacy from previous grants of consent.” The authors write—and this is something we talked about with young people at YouthLaw getting them to understand what consent was—“The ‘cup of tea’ [analogy] can be used to illustrate this. A person can want to drink one, two, three cups of tea, but if they say ‘no’ to a fourth, that ‘no’ is valid. Legally, juries should be focusing only on whether consent was given for the offence on trial,”. Let me say this one even more slowly: you cannot imply consent.

We have to also remember that in addition to being legally unhelpful to consider past sexual conduct in terms of determining consent to the alleged offence, it is also practically unhelpful, and Minister Faafoi spoke to this. It’s acted to deter complainants from providing evidence, even where a complainant has a very strong case. This bill addresses that problem by tightening rules around evidence regarding a complainant’s sex history to ensure they are protected from irrelevant and unduly invasive questioning. It also requires judges to intervene in inappropriate questioning and to address common myths and misconceptions about sexual violence to ensure juries are not misinformed by commonly held assumptions about how victims and perpetrators act.

Lastly, I want to speak, in particular, to the allowing of pre-recorded evidence. Earlier today, I came across a robust article on this very point written by the esteemed author Dr Emily Henderson when she held the role of Crown prosecutor and honorary research fellow at Auckland University. In the article, she examines the decisions of R v M and R v E both regarding the pre-recording of children’s cross- and re-examination in criminal trials. She notes that the Court of Appeal stated that the sole advantage of permitting pre-recorded statements is to reduce the stress that long delays can cause to witnesses, thereby hastening the complainants recovering. But she notes that the court’s analysis overlooks compelling evidence from Australia, as has been quoted, where some states have used pre-recording successfully for nearly 20 years, and the extensive international academic literature. She notes that Western Australia has pre-recorded child witnesses’ entire evidence in sexual abuse cases, again since the early 1990s. Dr Henderson notes—and I agree—that, yes, it does reduce delays, it also reduces stress, and pre-recorded evidence can also provide for better quality evidence allowing complaints to recall the detail of situations earlier, which is also extremely helpful and a form of justice for the accused. It can also provide for better evidence because the pre-recording allows any prejudicial and inadmissible evidence to be extracted before it’s prevented.

So once again, I’m very pleased to see this legislation before the House. I’ll end where I started, which is on those statistics. Let us never look away from them. I think if we saw 94 percent of under-reporting—and that’s probably not as big as it is—anywhere else across the justice sector, not only would we all be horrified, we’d be walking out into a New Zealand that was in disarray. This is one of the most intimate issues that justice must tackle. When we saw the Me Too movement, I believe what we saw was the tip of an iceberg. There is much that needs to be done to ensure that anyone who needs to raise this sort of complaint is able to do so. I commend the bill to the House.

Thank you, Madam Speaker. It’s a privilege to be standing here this afternoon speaking about a bill which has the potential to change the way the legal system deals with victims of sexual violence, and it’s something that no one should have to encounter. As Jan Logie said before, and I commend Jan for the long time she’s spent on this work, this has been a long time coming—and it has been a long time coming. I would also note that the Hon Amy Adams and Andrew Little have worked very well together in this space in the past.

We have taken such a long time to get here; it’s really important that we get this right. I haven’t previously been involved in the select committee or working on this bill, and I took a lot out of the speech from Ginny Andersen, because it’s always very good, when people have been on a select committee, to get up and give an account that you have given to us this afternoon in terms of what you went through in the select committee.

So National supports this bill to the committee of the whole House. We support the vast majority of measures in this bill, and we really do want to support it, but we do have issues with two of the measures in the bill, and they’re the issues that the Hon Simon Bridges laid out to you this afternoon. He spoke about legal concerns from the perspective of him being a lawyer in a past life. I’m not a lawyer, but we do have a number of lawyers who sit in this House as members of Parliament, and what I would urge this Parliament to do is have a really sensible discussion when we get to the committee stage of this bill—let’s have that debate. I don’t want to see this as one of those committee stages where there are parties that are opposed to this bill—where, you know, we get into a battle and we disregard these arguments. Let’s actually have the arguments properly, because, you know, the committee received advice about the current law already allowing witnesses to give evidence in an alternative way, and a number of submitters highlighted that a Court of Appeal judgment in 2011 detailed the rare and exceptional circumstances that would make that course of action appropriate. We don’t feel that it’s appropriate that this needs to happen in all cases. There are ways of doing this that might suit various trials in different ways.

But what I’m most concerned at, and you heard it from Simon Bridges—but we also have heard it from others today—is that there’s considerable potential for an adverse unintended consequence in relation to the proposal given that the existing right of recall under section 99 of the Evidence Act will remain on the statute book, and that is the ability to recall a witness. So, in other words, it will remain possible that a witness, including the complainant, will be recalled, to be cross-examined later, at the trial, despite having already been cross-examined. This would actively work against the bill’s stated aim to reduce the extent to which a complainant may be re-traumatised by the process of that cross-examination. Now, as I said, I’m not a lawyer, but if I thought that that had the potential to happen, then that’s one of the things that makes me stand off supporting this bill in the long term.

I would also like to say that, yes, I agree with everything that’s been said about no matter what a woman wears, no matter what’s happened in the past, an incident is an incident and it should be treated alone. However, we believe that evidence about the complainant’s sexual experience with the defendant should not be subject to the same heightened threshold that will apply to every other part of the complainant’s experience. So that’s a concern we have, and that’s something that we would like to discuss in the committee stage.

So I just want to make a plea in my speech this afternoon that we do have a sensible conversation when we get to the committee of the whole House, because we would really enjoy it if we could get unanimous support for this legislation across the House, but National’s not quite there yet and we have some things that we’d just like further discussion on. Thank you.

Kia ora. I would like to acknowledge and stand in support of every sexual violence survivor. I’d like to pay mention to those who have engaged with us during this process, like Gladys Hutton, who as a little girl was sexually violated by someone she should have trusted, and spent 20 years trying to fight for justice; for a 16-year-old who spoke to us, who had her first sexual experience in a way that she’ll never recover; from a young tāne who’s creating self-harm because his boyhood was taken in a place where he should have felt safe. I’d like to make mention to all those, and remember the trauma that later in life when comparing stories with loved ones they realise what they experienced. I’d like to stand and say, “I see you. We see you.” I said, when we were elected, that we would bring your voices and your faces into this place, and I want you to know that you are being seen and you are being heard.

As we debate this bill, I see and pay acknowledgment to all those who have been here in this place before I was and have been pono and tika to their appointments to fight the good fights and to be good lawmakers. We must reduce the trauma. We must reduce what is actually happening to those who are sexual violence survivors. Evidence and data has shown everything that our failed State justice system is doing. We must do all we can to reduce the stigmatisation. We must help reduce the shame. This bill is some of the way to help that healing and to minimise the trauma.

An offence like rape in Te Ao Māori is seen as a transgression of mana. The status and the dignity is then passed on to our survivors. At Parihaka, we experienced sexual violence. It was used as a tool to oppress. And as much as I don’t want to focus on the past all the time, it’s important that we understand the trauma and the intergenerational trauma that the violence of sexual rape has on us—on us as tangata whenua, on us in Aotearoa, and on us as whānau.

Rape was never spoken of, and yet we know that the impact of syphilis on us was around for generations—three-year-olds experienced syphilis. The invisibility of rape is an old tool and it’s an old tool that passes through generations. Records show not only the impact of syphilis but that this had happened by Government officials, by the military. So we must learn from the past and do all we can to bring visibility to sexual violence.

It is a privilege to be here today to stand amongst the other fighters for a kaupapa that we should all be doing together across parties. It is only by changing the justice system, that we can truly transform and help the healing and help those of our victims and those of our survivors to truly transform and become who they need to be. So we stand here and we commend this bill, and we hope that the other parties will join us and make this a better Aotearoa. Kia ora koutou.

This debate is interrupted and is set down for resumption next sitting day. The House stands adjourned until 2 p.m. on Tuesday, 16 February 2021.

Debate interrupted.

The House adjourned at 4.56 p.m.