A way forward on prosecuting sexual violence

My initial reaction to the police decision not to prosecute any of West Auckland’s young rapists was a cry of despair.

Nicola Gavey at Sexual Politics Now has a much more constructive response: an assessment of what went wrong and what could and should happen next.

Key takeouts: the police weren’t at fault…

The ultimate failure to lay charges doesn’t appear to be a result of Police inaction or, over the past year, misguided action.

… it was the prosecution guidelines.

According to the Solicitor-General’s Prosecution Guidelines (2013), a prosecution should only proceed if the evidence “is sufficient to provide a reasonable prospect of conviction”… This so-called ‘evidential test’ requires that “there is an objectively reasonable prospect of a conviction on the evidence”… “in forming his or her judgment the prosecutor shall endeavour to anticipate and evaluate likely defences.”

And the prosecution guidelines are inconsistent with the aim of achieving justice for a socially sanctioned crime like rape.

… ‘rape myths’ shape decisions at all layers of the criminal justice system… very good evidence (from a lay point of view, as well as a psychological and social point of view) might not be able to propel a case forward because the evidential test is unrealistic for many cases of sexual violence. If a case cannot be prosecuted because a conviction is a long shot, and if the reason for that is because the evidence will be viewed through a filter of normative misunderstandings and prejudices that could be sympathetic to defence attempts to discredit victims … then aren’t we trapped within a circular logic that helps to perpetuate the very dynamics of “rape culture”… ?

But everything’s not lost! There are things we can do to fix this.

I think there are two do-able things that should be kick-started immediately: A review of our laws and formal guidelines and a high profile public awareness campaign to promote sexual ethics and say no to rape.

The legal and social proposals are cogently put and supported by evidence, and then:

There is an enormous amount of expertise in New Zealand that could be harnessed in a coordinated and sustainably resourced way to give us a real chance to lead the world in stopping sexual violence.

What a future to aspire to. What a thing to be part of. When do we start?