The way police handle and investigate sexual violence cases has significantly improved in the past two decades, but a raft of barriers mean the low rates of prosecution and conviction refuse to budge.
Victoria University of Wellington criminology professor Jan Jordan said her research found many of the issues still centred around problems with consent, which was increasingly difficult to navigate in the world of online dating.
As well as problems with New Zealand’s consent regulations – where the woman had to prove consent was not given – Jordan raised the issues of a high evidentiary threshold, and the country’s adversarial justice system as barriers to holding perpetrators accountable.
Jordan and Wellington researcher Elaine Mossman presented the findings of their research at the symposium Still Silent Objects?, which explored 21st century barriers to rape reform.
Patriarchal legacies and the structure of the criminal justice system led to silencing of those who experience sexual violence, as well as self-silencing, with reporting remaining low at 10 percent.
In the research, funded by the Marsden Fund, Jordan and Mossman analysed police sexual violence files in 1997 and 2015, looking at the barriers to prosecution, conviction, what had changed over the period, and what stayed the same.
“Policing doesn’t happen in a social vacuum,” Jordan said.
In order to unpack the wider nexus between sexual violence and societal influences, related research was carried out by Victoria University of Wellington doctorate students, which explored how the realms of online dating, porn, media reports of rape, and the objectification of women through the beauty industry, magazines and advertising exacerbated, and contributed to, the problem.
“While not all victims are the same … from many victims’ perspectives, it seems there is very little about our current criminal justice system that is just, or is fair.”
Jordan said today’s climate led to ambiguity around what had been consented to, what constituted rough sex, and sexual violence as part of intimate partner violence.
These issues needed to be better understood and explored when assessing how the criminal justice system dealt with sexual violence, and the societal response to rape and sexual violence.
But ultimately, New Zealand’s adversarial justice system needed to be scratched, she said.
This sentiment was also expressed by victim advocates, including the Government’s Chief Victim Advisor Kim McGregor, at a victim hui last month.
“Victims of crime suffer not only harm, loss and trauma from the crimes against them. Many also suffer from a lack of justice and or revictimisation from within our inherited, Westminster, offender-centric, adversarial, criminal justice system,” McGregor said at the workshop held as part of the Government’s criminal justice reforms.
“While not all victims are the same … from many victims’ perspectives, it seems there is very little about our current criminal justice system that is just, or is fair.”
A legacy of blame and disbelief
In 1997, almost 40 percent of sexual violence cases were mis-categorised or misrepresented as K3 by police, meaning there was “no offence”, essentially saying woman had made a false allegation in 40 percent of cases. Those cases were not investigated further.
In 2015 this number dropped to 15 percent, with a subsequent review of K3 cases further pulling that percentage down to 9 percent – in line with international rates.
Police files back in 1997 were “pretty thin affairs”, and they showed a subjectivity from police, where a woman’s credibility was questioned based on things like alcohol consumption, their associates and sexual history.
“In those days police files told a pretty sad story about how rape complainants were dealt with,” Jordan said.
In some cases, the things that made behaviours and testimonies problematic, confusing, or inconsistent, were things that could be explained by trauma, dependency or vulnerability.
Issues with recall and articulation were sometimes due to mental health issues or impairment, which made those women more vulnerable, and not good witnesses.
Few cases where women had a mental health issue or mental impairment were pursued due to the perception her testimony would not be credible, and she could not make a reliable witness.
This meant sexual violence against such vulnerable women had been effectively decriminalised, Jordan said in quoting UK police and crime expert Betsy Stanko.
Women who reported cases of rape were often met with what they believed was “criticism, blame and misbelief”. Judgments by police were made early, and they had complete discretion of how to handle each case in the absence of formal policy.
At the time, the rate of conviction was just 13 percent.
A victim-centric approach
Following the “watershed” case of Louise Nicholas’ rape and the subsequent Royal Commission of Inquiry “police were galvanised into action”.
The issues with the way police dealt with rape and sexual violence cases were highlighted and the result was more investigations, more auditing and more reviewing of cases.
Following the change in policing, and societal shifts, Jordan and Mossman returned in 2015 to assess 110 police files of sexual violence cases.
While the analysis showed police attitudes and investigations had dramatically improved – no subjectivity could be garnered from reading the substantial files – the success rate remained troublingly low, with just 15 percent of the cases ending in a conviction.
“How come so many men continue to rape so many women, especially the women they profess to loving?”
The number proceeding to prosecution also remained relatively static at 28 percent, compared to 30 percent in 1997.
The evidentiary threshold remained high, making it difficult for police to proceed with cases they believed didn’t met the threshold.
Meanwhile, 39 percent of cases in 2015 could not go forward due to the complainant withdrawing their complaint, or the complaint coming from a third party with the victim themselves not wanting to proceed.
While the police approach had become more victim-centric, factors such as mental health and stress, not wanting to go through the court process, fear of the perpetrator, and still wanting a relationship with the perpetrator contributed to the high number of complainants not wanting the prosecution to continue.
Difficult technological landscape
Jordan said interviews with parties that worked in the sexual violence space highlighted growing trends that linked sexual violence and rape to online technology.
There was ambiguity around whether people had consented to sex when they agreed to meet up online.
In some cases, consent had been given under false pretences, where the man pretended to be someone online who they weren’t. In one case, the woman agreed to meet up with the man for sex, but when she arrived his friend was there and held her down while the person she had been speaking to online raped her.
There were also examples where women had agreed to rough sex, or expressed a desire for rough sex, but understandings of what that entailed varied, leading to non-consensual sexual violence and extreme aggression.
“We need to remember not all women can yet have their voices heard and their stories believed.”
Jordan also raised the prevalence – and lack of awareness of – intimate partner violence, when a woman is raped by a current or former partner.
“How come so many men continue to rape so many women, especially the women they profess to loving?”
It was difficult to determine whether the rates of sexual violence had increased due to low reporting, and the way society and the criminal justice system silenced survivors, she said.
Long-held messages about a woman’s responsibility to protect herself, and a shame and embarrasment associated with these types of sexual violence stopped women from reporting their abuse. Coupled with the consent and evidentiary threshold, it went some way to explaining the low prosecution and conviction rates.
Jordan said there had been moves in the right direction, with things like the #MeToo movement and the Trump marches.
But there needed to be tangible responses to increased dialogue around patriarchal legacies that perpetuated objectification and sexual violence.
“We need to remember not all women can yet have their voices heard and their stories believed.”
Where to get help:
National Rape Crisis helpline: 0800 88 33 00
Safe to Talk national helpline 0800 044 334 or www.safetotalk.nz
Read tomorrow’s piece on Newsroom about the role that news media, women’s magazines and increasingly aggressive pornography play in women’s objectification and self-objectification.
