A Tiny Minority of NZ Rape Cases Make it to Court. Do We Have A Problem?

Today, we published one New Zealand woman's story of reporting her rape, and being told a prosecution is not viable.

Anna's* story is simple, devastating—and startlingly common. Only a small minority of the women who experience sexual violence in New Zealand will go on to see the perpetrator in court.
Rape and sexual assault in New Zealand is already under-reported. Only an estimated nine percent of sexual violence cases are ever reported to police. Of those that are, just over half will have a perpetrator identified. Less than a third will go to prosecution stage. And less than half of those, or 13 percent of overall recorded cases, will result in a conviction. So out of 100 assaults? Nine will be reported to the police, three might be prosecuted, one perp is convicted.

For women who do go through the process, it's often mixed. Even Anna says in some ways she'd be ambivalent about the process of having her account scrutinised and disbelieved.

"In some ways I do wish they had gone through with it, because I want my rapist to know how much he damaged me. I feel like I'm going to be dealing with this experience for the rest of my life, and I wish he had to as well," she says. "On the other hand, I had his girlfriend of the time tell me that she didn't believe me, would never believe me, and would make sure no one else believed me. That really frightened me, thinking I would have to relive this horrific experience again and again, and always wonder what people thought."

Criminal lawyer Annabel Cresswell, told VICE the crown are looking for something that can be proved beyond a reasonable doubt. "Sexual offending, it's always difficult because usually there's not another witness in the room that can help, so it's usually he said–she said."

"That's what they'll have in the back of their mind: is this something that can be proved in a court beyond a reasonable doubt?"

A police spokesperson said police are weighing two main factors when they decide whether to prosecute: the evidence test, and the public interest test. The former looks at whether the evidence which can be submitted in Court is sufficient to provide a reasonable prospect of conviction.
They note that: "Just because the case does not meet the threshold for a prosecution, does not mean that Police don't believe the victim's account, but merely that there is insufficient evidence to take the matter to a prosecution."

But in the past, New Zealand has had glimpses into a disturbing level of police scepticism about rape complainants. A small qualitative 2001 study from Victoria University found some detectives were estimating up to 80 percent of rape claims were false. International research puts the true figure at between four and 10 percent.

A 2004 analysis of 166 victims' case files found in just 21 percent did police notes conclude the complaint was genuine. In 38 percent of cases, police were unsure whether the complaint was legitimate or not. In 33 percent, police believed the complaint to be false. The study found police were particularly likely to be skeptical of women who had been drunk, delayed reporting, or who had experienced a previous sexual assault.
For some police still in the force, that scepticism may have been taught early in their training. In 2007, a Commission of Inquiry cited police training manuals, still in use in the 80s and 90s, that rape may be falsely alleged "due to fear of pregnancy or as an excuse for being late home".

"Consider: shame or fear of family retribution, but also consider vindictiveness or pure fantasy," they read. New Zealand police policy has changed dramatically since then, but there are still reports that victims' complaints aren't taken seriously. This year will mark four years from the Roastbusters scandal, where a group of young men boasted online about sex with intoxicated and unconscious girls as young as 13. No charges were laid, and the Police Independent Authority later found there had been "systemic failings" in the investigation.

In an open letter following the case, one girl—who was 14 at the time of the offending—writes, "When I talked to the police I felt like they didn't believe a thing. Something about there not being enough proof or witnesses. So I gave up and thought 'Why am I wasting my time?' I went through quite a few interviews and I told them about my experience."
A Fairfax investigation earlier this year found a number of rape complainants were being told that if the accused said the encounter was consensual, it would prove fatal to the investigation.

"They told me from the beginning if he chooses not to talk or says it was consensual then they couldn't press charges," said one Auckland woman, who says she was drugged and raped on a first date by a man she'd met on an internet dating site this year. Another woman, who was violently raped by an ex, said for several months after she spoke to police, there was no investigation because of confusion over whether she wanted to make a formal complaint. She later received a formal apology.

Cresswell says while the process is now vastly better for victims than it used to be, there are still systemic problems in the way sexual assault victims are perceived, and that could filter through into the prosecution process.

"A lot of it comes down to just general attitudes towards women and towards women's bodies. There are a lot of changes being made but we've still got a long way to go," she says. "You'll still have people in the cops—and when I used to work there it'd be older cops with more old fashioned views—but they'll think well she was drunk, she's not going to be very credible or she was dressed in, you know, a slutty kind of a way, she's not going to be very credible."

New Zealand's low conviction rates have lead to some calls for reform of the criminal justice system. In April, Labour's sexual violence spokesperson Poto Williams called for a shifting of the burden of proof in sexual assault cases, so that police took the stance of believing victims as a starting point. "Now, I know that runs up against 'innocent until proven guilty', and that would be one of the issues that we'd really have to consider long and hard, but I'm of the view that we have to make some changes," Williams told RNZ. Back in 2014, Labour Leader Andrew Little proposed a shakeup of sexual violence laws that would shift the responsibility for demonstrating consent toward the accused, and see rape victims questioned by judges rather than defence lawyers. "Then you look at the volume of sexual violence cases and the 1 percent of cases that result in a conviction, there is something wrong with the way we are handling sexual violation cases. The circumstances may well justify doing something radically different," he said. And there are incremental changes in the works. In December last year, New Zealand's first specialised sexual violence court started, aiming to shorten the length of cases, and providing special training for judges. The Ministry of Justice noted at the time that the court did not aim to make the process less adversarial for victims, and maintained the "innocent until proven guilty" approach.

Despite the high attrition rates in sexual assault cases, Cresswell says she doesn't see shifting the burden of proof as an answer.

"I can see why we have this focus on making a complainant's day in court much easier and not re–traumatising them, but we need jury trials. Because as much as you say it's just awful when people get raped and they have to come to court and they have to be cross–examined, you need the other side of that, you need to be reminded that people do lie about rape and people do bring false complaints."

Despite all this, Anna says she doesn't regret making the report. "I'm glad I went through with it, because at least I know I did everything I could to take the power back. It was so scary, and I had so many conflicting emotions about whether I should report it or not," she says. "I also realise on reflection how subconsciously impacted I've been by the rape culture we have in NZ. I automatically questioned whether I should have gotten so drunk, whether I led him on, whether he thought what he was doing was okay. But reporting it helped me to remember that if someone is too drunk to consent, and especially if they say no—then it is rape."

Need to talk?
Rape Crisis – 0800 883 300
Lifeline – 0800 543 354
If you've experienced a sexual assault you can report it to NZ police by dialling 111, or learn more here.