Consent and sexual grooming - when discussion gets irrational

Calm rationality quickly flies out the window when talk turns to the subject of consent in the offence of rape.

 

This thought occurred to me upon reading an article in the December 2020 edition of the New Zealand Universities’ Law Review. [1]

 

The issue was whether so-called relationship evidence (not a statutory term) should ever be admissible in support of a defendant’s claim of having a belief on reasonable grounds that the complainant consented.

 

Note that a requirement for conviction is that the prosecutor proves beyond reasonable doubt that the defendant did not have a reasonably held belief in consent.

 

Written by an academic, the article offers criticism of two decisions of senior courts, with the aim of encouraging debate over reform of this area of the law.

 

There is a good deal of virtue signalling. The author claims the views he supports are “progressive”. There are plenty of harsh adjectives. One decision is described as “effectively greenlighting the exploitive sexual behaviour forming the subject of the case,” as “brush[ing] aside any attempt at more subtle, sophisticated or policy-based discussion,” as failing to “get to grips with these issues” in a way that “is simply evidence of deeper flaws underlying [the decision’s] approach” to the legislation. Further, there is vagueness, indeterminacy, and erroneous reasoning.

 

Needless to say, with that resounding criticism as a motivator, I read the decision at which it was aimed. Here it is: Christian v R [2017] NZSC 145, [2018] 1 NZLR 315.

 

The Court did not decide that relationship evidence (the complainant’s previous sexual experience with the defendant) is always admissible. The Court (in the joint judgment) was simply applying the law to the circumstances of the case before it. Its speculative comments at [45] are no more than supposition about what could be a positive expression of sexual consent, a positive expression which is necessary for it to be legitimate (that is, reasonable) for the defendant to infer consent. Relationship evidence “may be capable of evidencing consent if there is nothing to indicate that the mutual expectations [concerning consensual sexual behaviour] are no longer accepted.” [emphases added]

 

The decision does not change the law. It did not have to resolve general matters, which are for legislators to decide. It does not make assertions about when relationship evidence must support an inference of consent. The word “grooming” is used once (at [67]), and is here equivalent to “seducing”, something the Court felt was highly unlikely but it should have been left for the jury to consider.

 

It is wrong to sever the question of consent from the circumstances in which it is claimed to have been absent. I disagree with the author’s endorsement of the view that “Consent is ... given to a person, not a set of circumstances.” Indeed, the quotation from Lady Hale offered in support of the separation of consent from circumstances actually puts the opposite proposition: “One consents to this act of sex with this person at this time and in this place.”

One must look at the circumstances to assess whether the defendant could not reasonably have believed the complainant was consenting. Just as propensity evidence can be admissible against a defendant, so too should it be admissible against a complainant. If a complainant had a propensity to consent to sexual intercourse with this defendant on other occasions similar in time and place, and if there is nothing to indicate any difference on the present occasion, why should that previous behaviour be ignored?

It is sometimes said that it is illogical to say that because a complainant consented before, there must have been consent now. That indeed is illogical, but it is not really the rationale for the relevance of previous conduct. The focus is on what the defendant perceived, and whether a perception of consent on the present occasion was reasonable. The relevant standard is common sense, which is not always the same as logic.

 Grooming, as that word is currently used by commentators in this context, means “overbearing the will of a younger complainant in order to falsely manufacture their compliance.” While the conduct referred to in that definition is indeed objectionable, and should be criminal, that is not the sense in which the word is used by the Court in this decision. There could have been an issue for the jury about whether the complainant’s will had been overborne or whether she had been seduced into consenting.

 

The complexities of life are not necessarily appropriately examined within the strictures of absolute evidentiary rules. Courts need the flexibility to assess evidence in the full context of the realities of sexual behaviour.

 

 

[1] Scott Optican, Christian v R and Jones v R: How Bad Consent Law Creates Bad Evidence Law in New Zealand Sexual Offence Trials (2020) NZULR 283.

Balancing and proportionality in admissibility decisions

How do we predict judges’ decisions on the admissibility of improperly obtained evidence?

 

Some lawyers think it all depends on who the judge is, and what the judge had for breakfast.

 

But really, prediction is quite easy, at least for lawyers competent in this area of practice.

 

In New Zealand, the decision must follow a statutory structure, set out in s 30 of the Evidence Act 2006. According to s 30(2)(b),

 

“if the Judge finds that the evidence has been improperly obtained, [the judge must] determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.”

 

 

Points to note concerning the method are: (1) it is a proportionality determination, (2) carried out by means of a balancing process. Further, (3) appropriate weight must be given to the impropriety, and (4) proper account must be taken of the need for an effective and credible system of justice.

 

We can’t give this any meaning until we see how it is applied in practice. But structurally, at least we know that there is balancing, proportionality, and importantly point (4) which is the decision criterion. It is all decided against what an effective and credible justice system requires.

 

But again, we need the judicial decisions to reveal what this means.

 

There are two kinds of precedents here: weight precedents and proportionality precedents.

 

We need to know, in the case we are dealing with, what weight will be given to factors favouring admission of the evidence, and what weight will be given to factors favouring exclusion of the evidence. Then, with that combination of admission and exclusion weights, we need to know what the precedents indicate will be the proportionate outcome.

 

You might find it easiest to consider the whole thing diagrammatically. Not all lawyers need the assistance of diagrams, but I certainly do.

 

As there are basically two things to consider – admission and exclusion factors – we could put them on the x- and y-axes of a graph. The y-axis, the vertical one, will be for the admission factors, and the horizontal x-axis will be for the exclusion ones.

For each axis there will be movement to a higher or lower position as relevant matters are taken into account. For example, the logically first consideration on the admission axis will be the starting point for sentencing, but movement down from this may be required if the evidence is not particularly important to the prosecutor's case or, more significantly, if the evidence is unreliable. And on the x-axis, a serious impropriety might be reduced in weight by considerations of urgency or public safety.

 

Experience warns us that the x-axis will need to carry more information than the y-axis, so we can stretch it out a bit to make room. The rectangular field, bounded on two sides by these axes, can be thought of as a field of balance points.

 

This field of balance points will be divided into an area of admission points and an area of exclusion points. There will be a boundary between these points, and the shape of that boundary line will be a visual representation of the decision criterion, point (4) above. The shape of the boundary will be revealed by decided cases.

 

And yes, it has been. Although different lawyers, reading the cases and coming to their own understanding of them, might come up with differently shaped boundary lines, here is mine:

 

 

I like to think it reveals this pleasing curve because the outcomes of the decision process have been pleasingly rational. There are, inevitably, a few cases that don’t fit the pattern, and they can reasonably be said to have been wrongly decided. There are also some cases in which the weighing process has not been carried out consistently with the logic of binding precedents, but although wrongly reasoned they are usually correctly decided insofar as their proportionality outcome is consistent with the pattern of precedents.

 

Walking through the diagram, we have:

 

O to A: the merely technical nature of the impropriety is insufficient to ever result in the exclusion of evidence.

 

A to B: low level impropriety and low level public interest in admission: usually the result will be exclusion of the evidence. The line A-B is not straight, and it is bent to increase the exclusion zone in this part of the field.

 

B is the flattish part of the boundary line, reflecting the distortion of the field that occurred because we stretched out the x-axis a bit. It corresponds to point E on the y-axis. Broadly, if the starting point for sentencing, based on the prosecutor’s summary of facts (or on the state of the evidence at the time the issue has to be decided), would be in the region of four years’ imprisonment or more, the offending can be called - in this context - serious. There are exceptions, where public interest concerns require the offending to be regarded as serious even though the starting point would have to be lower because the statutory maximum penalty is relatively low. These cases can be given appropriate weight on the y-axis as exceptions to the four-year guide.

 

C to D: some improprieties are too serious for evidence obtained as a result of them to ever be admissible, regardless of how serious the alleged offending is. The boundary line between the admission and exclusion zones reaches the top of the field before the top right corner. This can be thought of as a representation of the “cuts both ways” description of offending of high level seriousness. [1] Such offending favours both admission and exclusion, and long-term considerations of the repute of the justice system lead to exclusion prevailing.

 

Of course, there is much more to be said about this. [2] But my point here is that diagrams can help to reveal the underlying rationality of balancing and proportionality decisions.

 

 

[1] See my recent discussion of this here (11 November 2020).

 

[2] For much more, see my perpetually draft paper on this site. Recent updating of that paper has been difficult because of the caution required by suppression orders and the increasing of court backlogs. But I can say that the pattern of precedents has continued up to the present.