Lawyers must stop 'peddling myths' in rape trials (Stuff Nation)
Barrister and journalist Catriona MacLennan argues lawyers must stop 'peddling myths' when defending clients accused of rape.
OPINION: A decade has passed since the report of the Commission of Inquiry into Police Conduct was released. The inquiry was sparked by the heroic Louise Nicholas' allegations against the police and led to 47 recommendations which police have spent 10 years implementing.
But one aspect of the way we deal with rape cases has not changed at all in that time.
This is the way in which lawyers represent those accused of rape. Lawyers continue to peddle rape myths on behalf of their clients.
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These myths include:
* Women who consent to sex at night wake up in the morning regretting it and make false rape complaints to cover their regrets.
* A woman who has had sex once with a man has consented to sex with him forever.
* "No" said by women doesn't mean no and "real men" will keep pressing for sex.
* False rape complaints are common.
* Women's behaviour or clothing are a justification for rape as men are "led on" by skimpy female clothing.
* Women who are drunk or have used drugs are to blame if they are sexually violated.
* Teen rape is not rape but "adolescent experimentation".
* Women make up false complaints of rape against famous men to try and extort money.
In promoting these myths, lawyers are disregarding their primary ethical duties. These are not to the client, but rather to the court and to the administration of justice.
The Lawyers and Conveyancers Act states in section 4 that every lawyer must comply with the fundamental obligation "to uphold the rule of law and to facilitate the administration of justice in New Zealand".
Both the act and the Conduct and Client Care Rules governing lawyers specifically state that the overriding duty of a lawyer is to the court.
Obligations to clients are secondary.
It is estimated that only seven in 100 sexual assaults are reported, with only three being prosecuted and only one prosecution resulting in a conviction.
This means that sexual assault victims are not achieving justice from the legal system.
A key reason victims do not report rape is because of the ordeal of the trial process, which some describe as being a second rape.
The fact that so many women have no confidence in our legal system undermines overall trust in our justice regime.
Lawyers promoting rape myths are accordingly failing to comply with their ethical obligations: instead of upholding the rule of law and facilitating the administration of justice, they are undermining them.
The Government is at present trialling sexual violence courts in Whangarei and Auckland. These aim to improve the way in which sexual violence cases are dealt with by the legal system.
The 20 judges involved in the pilot have received specialist training to upskill them about the complexities of sexual violence matters and update them on the latest research.
This education is vital as overseas research clearly demonstrates that, if changes are made to police and court processes but judges and defence lawyers continue operating in the same manner, no improvements in the handling of rape trials are achieved.
We now need to tackle the way in which lawyers represent clients in rape trials.
Students at law school require education about rape myths and sexual violence, as do lawyers who are already in practice.
In addition, much tighter control of trials must be exercised by judges to prevent rape myths from being perpetuated.
Further reform of cross-examination rules is also required.