Victim-oriented Law Reforms: Advantages and Pitfalls

Felicity Goodyear-Smith*

ABSTRACT: This paper addresses issues arising from the well-needed reforms introduced in the past couple of decades aimed at treating rape complainants with consideration and compassion, and minimizing the stress endured by undergoing the judicial process when making a complaint.

It is argued that procedures which offer advocacy and support for the complainant can lead to an effective presumption of guilt of the alleged perpetrator and erosion of the principle of impartiality.  The difficulty of gaining a conviction when a rape has occurred but no forensic evidence is available is weighed against the dangers of conviction in the absence of corroboration. Issues regarding (mis)interpretation of consent and the effects of an expanded definition of rape are also discussed.

The growing 'backlash" from concerned academics and members of the legal profession is examined
 

Reforms in Practice, Policy and Legislation

Until 15 years ago in New Zealand, a woman making a complaint of rape to the police was likely to be treated with disbelief.  Furthermore she would often find the subsequent processes of police interrogation, medical examination, evidence-giving, and cross-examination during depositions hearings and trial a traumatic and brutalizing ordeal.

The 1980s heralded some badly needed reforms in this regard.  In 1982 I assisted in the setting up of a sexual assault center in Central Auckland which combined the forensic examination and the medical care of rape victims.  Trained women doctors and counselors worked in conjunction with the police in obtaining relevant evidence and providing appropriate psychological and physical therapy (Goodyear-Smith, 1986a, 1986b, 1987).  Courses were developed to train professionals from a number of disciplines on the management of the acute rape victim.  These included police instruction on how to minimize the stress for a complainant in what is inevitably a difficult experience.

In conjunction with these practices, new legislation was introduced to make it easier to lay charges of rape and obtain convictions and reduce the trauma sustained by complainants in the process.  Between 1985 and 1995 numerous changes were made in the law in favor of the complainant.  These changes include:

bulletRemoval of the requirement for judges to caution juries about the dangers of conviction in the absence of corroboration;
 
bulletAbolition of the law of spousal immunity in rape (now acknowledges rape within marriage);
 
bulletIntroduction of the new offense of sexual violation, which recognizes the seriousness of sexual assaults other than rape;
 
bulletAllowing the conviction of children under 14 with the charge of rape;
 
bulletAn honest belief of the defendant that consent was given by the complainant no longer being accepted as a defense if the belief is said to be "unreasonable";
 
bulletRestrictions on asking the complainant about her sexual experiences with others;
 
bulletTaking the complainant's views into account when considering bail;
 
bulletUse of victim-impact reports at sentencing.
 

Impartiality Versus Advocacy

In 1987 I co-authored the first New Zealand text for doctors performing sexual assault examinations (Lawton, Goodyear, & Stringer, 1987).  In this book I identified the two roles a doctor must perform when called by the police to examine an alleged victim of sexual assault: "firstly therapeutic, as a medical practitioner with responsibilities to a patient, and secondly, forensic, to provide unbiased evidence for criminal investigation."  When instructing doctors in this work I taught that when sexual touching was alleged, normal findings should be reported as "neither confirming nor denying abuse."

In 1988 an organization called Doctors for Sexual Abuse Care (DSAC) was formed to take over the role of training and coordinating doctors performing sexual assault examinations, which I had been performing in a less formalized manner for several years.  I was made an honorary member of DSAC in acknowledgement of my pioneering work in this field.

In the intervening years, however, there has been an increasing divergence between DSAC's perspective and my own.  In a recent DSAC text for doctors performing these examinations (Fancourt, Shand, Broadmore, & Milford, 1991), the forensic role has been expanded from not only collecting the forensic data but also to "assessing [the physical findings] carefully in relation to the given history."  DSAC emphasizes that they believe false allegations are extremely rare, and that they see their role as police medical officers as advocates for the complainant.  DSAC doctors giving evidence in court in cases involving alleged sexual touching commonly describe normal findings as "consistent with abuse."

Despite mounting evidence to the contrary, sexual abuse workers in many disciplines, including police, DSAC doctors, social workers, psychologists, and therapists, are instructed that it is extremely unlikely for a sexual allegation to be false.  At the recent DSAC conference on rape (DSAC Inter-disciplinary Conference: Rape: 10 Years' Progress?, held in Wellington on March 27-30, 1996), there was continual emphasis on the importance of police and other professionals believing a complainant.  Indeed, the main criticism of the police was when they approached a case skeptically and focused on looking at gaps in the evidence rather than supporting the victim.  It is now accepted police policy to treat every sexual allegation as genuine and to minimize the distress of the complainant by avoiding critical examination of her testimony.

Frequently, the words "victims" and "offenders" are used synonymously with "complainants" and "accused" in pretrial and courtroom settings, seldom qualified by reference to an "alleged victim" or "alleged offender," even when the initial complaint is being discussed.  In his two-part paper suggesting ways to make the rape trial a less brutalizing experience for complainants, the Honorable Justice Thomas similarly assumes that all complainants are victims (Thomas, 1994a, 1994b).  The person who accompanies a complainant to court is called a "victim advocate" rather than a "complainant spokesperson."

Approximately 45% of sexual offense cases reported to the police are considered unfounded that is, cleared by police as disclosing no offense (Young, 1996).  But the audience at the recent rape conference was assured that this was not because the police did not believe the complainant, but because there was insufficient evidence to proceed.

Of cases which go to trial, about 50% result in acquittals.  Even in this situation, there is a presumption of guilt by many professionals and agencies.  Chief Justice the Right Honorable Sir Thomas Eichelbaum recently offered a number of reasons why defendants might be found not guilty, including juries not being prepared to go far enough and the public perception with respect to sentencing, but he did not include the possibility that one reason might be that some of those charged are truly innocent (Eichelbaum, 1996).  Whilst some who are acquitted may actually be guilty; this prevailing attitude means that once rape allegations have been made, even a successful defense in court does not allow the accused to fully clear his name.

This practice of advocacy for sexual offense complainants, which has been adopted by people working in forensic roles, seriously undermines the impartiality of the investigation and trial procedures.  Inherently believing that all allegations are genuine means there is a presumption of guilt, and that police, doctors, counselors and lawyers have therefore already effectively conducted the trial in their heads.  The effects of confirmatory bias are well documented, and an initial belief in the guilt of the accused can color how the police, the doctors, and other professionals conduct their investigations and look for evidence which might demonstrate the defendant is innocent (Ceci and Bruck, 1995).

In many cases, the police, in fact, find cases unfounded because evidence indicates the allegations could not have happened; likewise in a number of trials the accused can mount a defense to prove that he could not have done what he was accused of.  In some instances, charges against a guilty man might be considered unfounded through insufficient evidence to proceed or he might be acquitted at trial because it failed to be proved beyond reasonable doubt.  There is, however, considerable evidence to demonstrate that many allegations are unfounded or result in acquittals because the man accused is actually innocent of the alleged crimes.
 

Abolition of the Requirement for Corroboration

Removal of the requirement for judges to caution juries about the dangers of conviction in the absence of corroboration has resulted in many cases coming to trial and resulting in convictions which the police acknowledge would not have got beyond the front counter 10 years ago.  Statistics indicate that allegations of violent stranger rape where the woman goes to the police straight away, a medical examination is performed, and the police conduct an investigation looking for the perpetrator are likely to be genuine allegations and are also likely to result in a guilty verdict.

However, there has been a huge increase in historical claims of rape (in 1995 more than a third of sexual offense convictions were for events alleged to have happened more than 5 years prior to the complaint [Spier, 1995]) where there is no corroborative evidence and, frequently, where the issue rests on whether the complainant consented to sexual intercourse.  Some of these charges are based on memories recovered or enhanced in counseling, others where a relationship has soured and the allegations are fueled by anger towards a boyfriend or husband.  It is these sorts of cases where false accusations are more likely to occur.

A number of senior legal counsel in New Zealand have also expressed grave concerns that the legal safeguard of corroboration has been thrown away.  Nigel Hampton QC laments the loss of "that sensible rule built up over centuries about corroboration: a time-honored and solemn warning given by judges to juries that it is dangerous to convict without the presence of corroboration, that is evidence coming from a source independent from the complainant's own mouth." (Hampton, 1995).
 

Issues of Consent and an Expanded Definition of Rape

The new legislation says that "consent is negated if the victim submits or acquiesces because of the application or fear of force to that person or another."  Consent must be "genuine" and "freely given" and it is not consent if the complainant was not in a position to make a decision of her own free will.  It is no longer enough for an accused to have believed the complainant consented to sexual intercourse; the new law now requires that his belief must be based on reasonable grounds.  For example, it has been ruled by the courts that if the complainant is under the influence of alcohol, she is not able to give free consent, and it is unreasonable for the defendant to assume that her acquiescence and participation indicates consent if she is intoxicated.

Justice Thomas (Thomas, 1994b) believes the law has not yet gone far enough, and that a woman has only consented if she actively and freely gives her agreement.  Participating in sexual activity without saying "no" or showing any sign of resistance would not constitute consent, and a defendant would have to be able to demonstrate that consent had been "positively communicated in an unequivocal manner" to avoid a conviction for rape.

The current changes in the law have resulted in convictions for rape in cases where both parties were drunk and the complainant did not indicate her unwillingness at the time, a case where neither the defendant nor the complainant could remember whether or not she consented (Crown v Coffey, 1994), and another case where the complaint did not indicate unwillingness at the time (Crown v Foord, 1991).

Several cases have also come before the courts involving rape within marriage and the situation categorized as "date rape.  No one would dispute that sexual intercourse which occurs under duress, coercion, or force constitutes rape.  But where there has been no demonstrated reluctance at the time the issue of consent is clearly very open to interpretation.

The current rendering of what constitutes consent does not acknowledge the nature of interactions between men and women.  Although the double standard which condones promiscuity for men but not women was challenged by our society in the 1960s and 1970s, we have seen its return in the last decade (Goodyear-Smith, 1993).  Women are constantly being told by the media and advertising how to appear sexually attractive to men, with make-up, sexually-alluring clothes and many other consumer products.  The process continues to treat them as objects and they are given powerful instructions to pay close attention to their body shape and appearance.

Although women are given the message that they should be sexually attractive to men, they are not supposed to engage in sexual activity outside of monogamous marriage.  Our society does not encourage women to enjoy their sexuality as active participants and initiators.  Such behavior can earn a woman the label of "easy lay" or "slut."  Presented with opposing messages of sexual allurement and rebuff, it is in no way surprising that many men are confused as to what constitutes consent.  From a woman's perspective, she may feel pressured into a sexual experience.  But from his viewpoint, her holding back or lack of active initiation might be seen as modesty, and he might believe she really wants sexual activity (Goodyear-Smith, 1995).  Girls are taught how to say "no" but not how to say "yes."  In a survey of 610 American female college students (average age 19 years), 39% said they had said no to sex when they meant yes, and 69% said they had said no when they meant maybe.  Of sexually experienced women surveyed, 61% said they had engaged in token resistance (Muehlenhard & Hollabaugh, 1988).

A woman might actively participate in the heat of the moment, and this is especially likely to be true when inhibitions are lifted under the influence of alcohol.  But she may later regret her actions and feel she was taken advantage of.  As many allegations are now made historically, she may decide many months or years later that an episode was rape, often when the relationship has ended and hostility has developed between the parties.  The issue of consent then becomes a value judgment.  He may have interpreted her actions as "freely given consent."  She, however, may retrospectively interpret his sexual advances. as unsolicited and subsequently believe that the experience constituted sexual assault.

Rape workers commonly talk about women's rights and men's responsibilities.  If a couple have sexual intercourse whilst drunk, and the woman freely participated in or even initiated sexual activity at the time, but later regretted her behavior, the man can be charged with rape because she was unable to give consent by virtue of intoxication (and it might be said that "he got her drunk").  In other words, she is not responsible for her behavior because she was drunk, but he is held responsible not only for engaging in intercourse but also for her drinking.

Such an attitude disempowers women.  Whilst rape is never to be condoned, women should learn to take responsibility for their own behavior and to avoid situations where unsolicited sex is more likely to happen.  Feminist dogma says that just because a woman kisses and cuddles with a man, goes back to his flat alone with him, takes off her clothes and gets into bed with him, this does not mean she has given permission to engage in sexual intercourse.  No matter how sexually provocative a woman's clothing is, no matter how freely and enthusiastically she engages in sexual foreplay, she has the right not to engage in unwanted sex.  Whilst this is true, women should take responsibility for behaving in ways that maximize the chances of their rights being maintained.  Similarly, pedestrians can claim the right not to be run over by a motor vehicle, but they can significantly reduce the chance of that occurring by not stepping onto a busy highway in front of oncoming traffic.  One of our primary objectives should be the development of a society where men and women enjoy equal rights and responsibilities.

The broadening of the definition of rape results in a corresponding expansion of the reported incidence.  Amongst other things, this has implications regarding the perception of the extent of the problem and the need for resources when various bodies apply for funding.

A commonly cited study looking at the incidence of rape at 32 American colleges found that, according to the definition of rape used by the director of the survey, Mary Koss, 17% of 6,159 female students had been victims of rape or attempted rape an average of twice between the ages of 14 and 21.  Koss was, however, appalled that most of these women did not know they had been raped in fact, 73% whom Koss categorized as victims did not think that they had been raped, and 42% had subsequently had sex again with the man who supposedly raped them (Koss, Gidycz, & Wisniewski, 1987).  Some feminist authors, for instance Catherine MacKinnon (1987) and Andrea Dworkin (1988) even suggest that because of the power imbalance between men and women, women can never freely give consent, and all acts of sexual intercourse are effectively rape.

Exploring one's sexuality as an adolescent in the 1990s, whether as a girl or as a boy, is a difficult and sometimes painful task.  Most teenagers will have sexual experiences they do not like, or later feel bad about in some way.  Defining all unwanted experiences as sexual offenses and encouraging reporting to the police places men and women in adversarial positions.

Teaching communication skills to young people in their interpersonal relationships is far more productive in preventing sexual assault than defining incidents involving misinterpretations of each other's behaviors as criminal offenses.  Men and women need to be able to effectively make known to each other what their expectations are in a given situation, 'and express what they want and what they do not want to happen.
 

Evidence that False Allegations are Occurring

In the last two years I have documented evidence of sexual assault allegations being made in New Zealand which have been proven to be untrue or are extremely unlikely to have occurred.  These include cases in the following circumstances, although this list is in no way exclusive:

bulletAllegations made on the basis of memories recovered during therapy of highly improbable events, including memories of abuse as an infant; full penetrative intercourse and sodomy as a preschooler which went undetected by care-givers; and abuse within satanic cults, including ritualized murders, cannibalism and abortions;
 
bulletAllegations made by daughters against their fathers based on recovered memories of childhood abuse and rape, which have been subsequently retracted by the daughters after they came to realize that these were pseudomemories produced by hypnotic techniques used in their psychotherapy;
 
bulletFamily Court rulings that fathers have been falsely accused by their estranged partner of sexually abusing or raping their children in the context of acrimonious custody or access disputes;
 
bulletCases where evidence has been produced or alibis are available to demonstrate that the accused could not have committed the alleged crime;
 
bulletCases of teenage confabulations in situations of unrequited romantic interest;
 
bulletCases where teenagers and women have admitted making false claims they have been raped as acts of retribution against over-strict parents or ex-boyfriends and spouses when a relationship has soured;
 
bulletCases where an untrue statement to a friend or family member has been reported to the authorities, believed and acted on and become increasingly difficult to retract;
 
bulletCases of extortion, where one party has threatened to falsely report the other as having committed a sexual offense, unless a sum of money passes hands.

I have spoken with several families where one of their members has been shown to be wrongfully accused of rape.  These are ordinary New Zealand folk who have suddenly had their lives torn upside down and who have sustained grave losses from these false allegations.  A recurring theme is how they trusted the justice system and how their faith in society's social and judicial institutions has been shattered.  The stories they tell are of a presumption of guilt by the police, doctors, social workers, and mental health professionals who were being paid to investigate the allegations and of a failure to take into account their side of the story or to check for evidence which might demonstrate their innocence.
 

The Backlash Argument

Any criticism of the practices and legislation that have been introduced this decade is routinely dismissed as "backlash" from people with reactionary sexual politics.  At the DSAC conference mentioned above, my offer to present the arguments contained in this paper was declined, and this perspective was not addressed in the meeting.  I know many professionals who share my views, including lawyers, judges, police, doctors and psychologists, but they, like myself, were not invited to address the conference.  DSAC executive members say that I should not be allowed to speak because I "do not give a balanced view."  Anyone challenging the prevailing ideology is subject to considerable hostility and ad hominem attacks.

In the past two years DSAC has actively campaigned to prevent my speaking to professional audiences or publishing in journals on recovered memory issues.  They have not taken up my invitation to engage in open debate and, when a psychotherapy tutor agreed to such a meeting, DSAC tried to have the dean of the school cancel the engagement.  Many other agencies and institutions, such as Rape Crisis and the Clinical School of Psychology at Auckland University, similarly try to portray me and other professionals who express their concerns as extreme representatives of the backlash.
 

Conclusion

I fully acknowledge that women are being raped in our society and have witnessed first hand the trauma they can suffer.  There is no argument that reforms were needed to reduce the brutality of a rape trial for a woman making a complaint.  As a witness for the Crown, the complainant was often lost sight of as the legal machinery ground slowly but relentlessly on.  It was certainly important to introduce practices which treated complainants with sensitivity, but this courtesy should be similarly accorded to all accused.  The hallmark of justice in Western society is "innocent until proven guilty" and a judicial system is supposed to operate from a place of neutrality, examining the evidence for an allegation objectively and deciding whether a crime has been proved "beyond reasonable doubt."  But the impartiality of this system has been seriously compromised by the practices of validating and supporting complainants at the expense of the accused.

Clearly, one's perception of balance is affected by where one stands, but the perspective now appears to be weighted almost exclusively in favor of the (female) rape complainant against the (male) defendant.  The pendulum has swung to one extreme.  Whilst broadening the net might allow for more genuine offenders to be caught by the system, it has also resulted in an unacceptable number of innocent people being trapped in the process.

Rape allegations should always be taken seriously.  All complainants should be treated with sensitivity, compassion, and respect.  All those accused should be treated in the same manner.  The police should be skeptical: they should neither believe nor disbelieve the complainant but ask, "What is the evidence?" and conduct an impartial investigation.

Men and women have equal capacity for both good and evil.  Some men do rape, but some women also cry rape when it has not happened.  Deliberate false allegations are sometimes made for revenge or for monetary gain.  Some teenagers knowingly make false allegations to avoid trouble or to get back at overly strict parents or those who have scorned their sexual advances.

Most false allegations, however, are not intentional lies, but result from women and children coming to wrongly believe they have been victims of sexual attacks.  The last two decades have seen the development of a "sexual abuse industry" with a rapid proliferation of workers involved in its detection and management (Goodyear-Smith, 1993).  Children are coached by suggestive questioning to believe their fathers have molested them.  Concerned adults who suspect a child's stress behavior indicates sexual abuse set in place an investigatory machine which refuses to accept the child's denial and results in the child believing she (or he) must have been a victim, with extensive harm to all involved.  Psychotherapists who believe their adult client's problems are due to childhood sexual abuse contribute to the "recovery" of pseudo-memories of horrendous childhood traumas, including ritualistic torture and perversions.

That genuine sexual attacks occur, and the potential damage these wreak, is not to be denied.  However, exaggeration of the incidence of sexual offenses, the payoffs obtained from sexual abuse "victimhood," and contemporary social hypersensitivity and hysteria about sexual abuse all contribute to people being wrongfully accused of sexual crimes.

Professional denial of the rising tide of false allegations and an operating premise to always believe the complainant means the accused is presumed guilty from the outset.  Current practices, policy, and legislative reforms all reflect this.  What began as a useful and necessary process to sensitize police and other workers to the emotional needs of genuine rape victims has lead to an erosion of the impartiality of investigation and court procedures in sexual allegations.  The principles of the presumption of innocence, the requirement of corroboration, and concerns about the ability of children to be credible witnesses all have a time-honored legal tradition with which we tamper at our peril.
 

References

Ceci, S., & Bruck, M. (1995). Jeopardy in the courtroom. New York: American Psychological Association.

Fancourt, R., Shand, C., Broadmore, J., & Milford, R. (Eds.) (1991). The medical management of sexual abuse (pp.21 & 78), DSAC.

Dworkin, A. (1988). Letters from a war zone. London: Secker & Warburg.

Eichelbaum, T. (1996, March). Overview of the court process of the rape trial and case-load management: Have we improved in the Last ten years? Presented at DSAC Inter-disciplinary Conference: Rape: 10 years' progress? Wellington.

Goodyear-Smith, F. (1986a, April). Sexual assault centre, Auckland, New Zealand. Presented at First International Congress on Rape, Israel.

Goodyear-Smith, F. (1986b). Sexual assault examinations in New Zealand. Police Surgeon Supplement, 21, 4648.

Goodyear-Smith, F. (1987, January). Medical treatment of sexual assault victims. Journal of General Practice, 34-36.

Goodyear-Smith, F. (1993). First do no harm: The sexual abuse industry. Auckland, New Zealand: Benton-Guy Publishing.

Goodyear-Smith, F. (1995. July). Review of Was Eve framed or was she forsaken? New Zealand Law Journal, 23~233.

Koss, M., Gidycz, C., & Wisniewski, N. (1987). The scope of rape: incidence and prevalence of sexual aggression and victimization in a national sample of higher education students. Journal of Consulting & Clinical Psychology, 55, 162-170.

Lawton, M., Goodyear, F., & Stringer, P. (1987, 2nd edition 1990). Sexual assault examination a guide for medical practitioners. Wellington: DSIR.

Hampton, N. (1995, March). The investigation of allegations of sexual offending the "recovery" of "repressed" memories. Address to Canterbury Branch of the Royal Society, Christchurch.

McKinnon, C. A. (1987). Feminism unmodified Discourses on life and law. Cambridge, MA: Harvard University Press.

Muehlenhard, C., & Hollabaugh, L. (1988). Do women sometimes say no when they mean yes? The prevalence and correlates of women's token resistance to sex. Journal of Personality and Social Psychology, 54, 872-879.

Spier, P. (1994, November). Convictions and sentencing of offenders in New Zealand 1984 to 1994. Ministry of Justice.

Thomas, E. (1994a, October). Was Eve framed; or was she forsaken? Part I. New Zealand Law Journal, 368-373.

Thomas, E. (1994b, November). Was Eve framed; or was she forsaken? Part II. New Zealand Law Journal, 426-432.

Young, W. (1996, March). Rape in New Zealand, 1985-1995: An overview of changes in rape management during the last 10 years. Presented at DSAC Inter-disciplinary Conference: Rape: 10 years' progress? Wellington.

* Felicity Goodyear-Smith is a family physician at 380 Wright Road RD2 Albany, Auckland, New Zealand and is the executive director of COSA (Causalities of Sexual Allegations Incorporated.)  [Back]

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