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Editor: Colin Miller
Univ. of South Carolina School of Law

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Wednesday, August 27, 2008

New Zealand's New Rule?: NZ's Justice Ministry Proposes Rape Shield Law

It looks as if New Zealand might be ready to join the United States and other countries in enacting a rape shield rule.  Currently, in rape case in the country, judges admit evidence concerning the sexual history of both the complainant and the accused  in open court without prior consideration of its relevance to the case.  And if New Zealand juries are anything like juries in the U.S., that can cause serious problems.  To wit, for the better part of this country's history, defense counsel in rape cases used to parade into court all of the alleged victim's sexual partners to, in effect, prove that she had a propensity to consent to sexual relations and that she acted in conformity with this propensity, and thus consented, at the time of the alleged rape.  Or, more generally, they used the evidence to prove that the alleged victim was a liar.

Such a display impacted not only jurors, but also judges, who often revealed their chauvinistic tendencies in their opinions.  For instance, in its 1895 opinion in State v. Sibley, 33 S.W. 167, 171 (Mo. 1895), the Supreme Court of Missouri fatuously concluded that"[i]t is a matter of common knowledge that the bad character of a man for chastity does not even in the remotest degree affect his character for truth, when based upon that alone, while it does that of a woman."

With such crazy notions bandied about courtrooms, its easy to see why it was difficult for prosecutors to procure rape convictions and easy to see why the anti-rape movement, an offshoot of the civil rights movement of the 1960s and 1970s, was able to get rape shield rules passed.  These rules as well as Federal Rule of Evidence 412 in effect shield complainants from having their past sexual behavior and/or predisposition exposed in the courtroom unless defense counsel can point toward a compelling theory of admissibility.

And New Zealand's Justice Ministry is considering doing the same.  It is currently seeking feedback as to whether current guidelines in the Evidence Act should be amended. The Ministry has suggested  changing the law to extend protection for complainants, by making previous evidence about their previous sexual experience inadmissible without prior agreement of the presiding judge.  It will be interesting to see whether the proposal is successful, and if so, whether the enacted law is more of a rape shield law or a rape sieve law.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/08/nz-rape-httpwww.html

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Comments

You appear to have misunderstood the media article when it says that 'Currently sexual history involving the complainant AND the accused can be raised in open court without prior consideration of its relevance to the case'.
The sexual history of the accused (i.e. with people other than the victim) is governed by NZ's similar fact rule in s43 of its Evidence Act. The sexual history of the victim other than sex with the defendant is governed by s44 of the NZ Evidence Act, which requires leave for admission which will only be given for the evidence if it is 'of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it' The proposal under discussion to extend this rule to cover prior sex with the accused too.

Posted by: Jeremy | Aug 31, 2008 3:51:20 PM

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