July 31, 2000
The Rape Risk
by David McLoughlin
'Where a woman waits 10 or 20 years
before complaining, the accused man's prospects of defence are very limited.
He can only offer a bland denial that will sound very unconvincing to a jury
which has just heard detailed but false evidence.'
Only 20 years ago, many police treated allegations of rape with scepticism.
Rape victims were often openly doubted, and if their allegations reached a
trial, they were subjected to gruelling cross-examinations suggesting they
had "asked for it".
Significant evidence other than the woman's word against a man's was needed.
Unsurprisingly, many rapes were not reported, and many which were did not end
up in court.
But the rise of the feminist movement made rape a political issue. The law
was changed in 1985 to allow a man to be convicted of rape on the
uncorroborated testimony of a woman. Police philosophy changed to one of
treating all complaints as genuine unless there was solid evidence to the
The number of convictions for rape and sexual violation leapt, from on
average 50 a year in the 1970s and 1980s to several hundred a year by the
1990s; average sentences also rose steadily.
And each year, some of the men tried and convicted were subsequently shown to
be innocent, leading to counter-claims by men's groups and defence lawyers
that the pendulum had swung too far toward believing any allegation of rape.
In 1997, after a series of high-profile cases where men charged with rape had
been able to prove their innocence, former Auckland police chief Bryan Rowe,
now a private detective, said rape investigations were "not
objective" and criticised a system where police often arrested a man
solely on a woman's word, then leaving it to the courts to sort out.
Former Maori Affairs minister Dover Samuels has been accused of rape by the
woman he admits to having a relationship with 14 years ago. She has also
claimed that she was under age.
In Parliament this week, Mr Samuels said he found the rape or sexual abuse of
women and children abhorrent and repugnant. "There is only one offence
more abhorrent, repugnant or contemptible, and that is for a person or
persons to fabricate the allegation of rape knowing that the person being
accused is completely innocent."
That comment, and his naming of the woman under parliamentary privilege, has
earned sharp criticism from his Labour Party colleagues, Rape Crisis and the
Women's Refuge Collective. But Canterbury
specialist Greg Newbold says Mr Samuels has a valid point.
"If you're innocent and accused of rape, you're in for a terrifying
experience," Dr Newbold says. "You will have the trauma of being
investigated. If you're charged, you will have the massive cost of your
defence and if you're convicted, which can happen if the jury finds the woman
a better witness than you, then you are facing a minimum sentence of eight
years. Your life will be destroyed."
Dr Newbold says Mr Samuels's political career has already been destroyed by
the allegations, because many people will believe the claims, even if no
charges are laid or if Mr Samuels is acquitted after any trial.
Many lawyers and police will point out that almost everyone accused of a
serious offence such as rape pleads not guilty, and that jails are full of
inmates who proclaim their innocence. "The justice system can't get it
wrong that often," one criminal lawyer says. "I don't think for a
moment all of my clients are as innocent as they claim."
And, just after another rash of cases where men charged with rape had their
innocence established, came the case of Christchurch GP Morgan Fahey, accused
by many of his former patients of raping, abusing and groping them over many
Fahey, former deputy mayor of Christchurch,
proclaimed his innocence. It came as a shock to many of his friends and
supporters when he unexpectedly pleaded guilty to 13 charges.
Dr Newbold says the Fahey case is different from those where a man is
convicted on the uncorroborated word of a single woman. There were many
accusers and a clear pattern of offending.
"That said, the police don't need much more evidence than a complaint.
They listen to the accuser and the accused and then, if they think the
complainant will stand up in court, they prosecute. And they tend to err on
the side of the complainant."
HAMILTON lawyer Warren Scotter has acted for
defendants in a number of high-profile rape cases, including that of Waikato University law student Nick Wills, who
was falsely accused of rape in 1995.
After Mr Wills was able to prove his innocence, the Police Complaints
Authority awarded him $30,000 as compensation for the police failing to check
"The complainant in Nick's case was totally believable, but there wasn't
a scintilla of truth to her allegations," Mr Scotter says. "Had it
gone to trial, he could easily have been convicted."
Mr Scotter says police attitudes to rape complainants have changed as a
result of publicity about Mr Wills's case, which featured on television in 60
Minutes. "I have no doubt police are more careful now," he says,
but adds that it is still very easy for an innocent man to be charged with
and convicted of rape.
"I am convinced that it can and does happen and I have been involved in a
number of cases where even the prosecution would acknowledge this. Further,
the older the allegation, the greater the risk.
"Where a woman waits 10 or 20 years before complaining, the accused
man's prospects of defence are very limited. He can only offer a bland denial
that will sound very unconvincing to a jury which has just heard detailed but
Justice Minister Phil Goff is considering compensation for an Auckland man who spent
14 months in jail after false allegations that he abused his son. He is also
awaiting a report on whether to award compensation to Aucklander David
Dougherty, who spent 3 1/2 years in jail on a rape charge before DNA evidence
showed that semen on a schoolgirl's underpants was not his.
And earlier this month, a Wellington
judge awarded $88,000 in damages to a man falsely accused of rape.