Professor Elisabeth McDonald
University of Canterbury
University of Waikato
In 2015 the New Zealand Law Commission proposed that trials involving allegations of sexual offending should be tried without juries (The Justice Response to Victims of Sexual Violence (NZLC R136). Prior to that recommendation, which followed a public submission process, as well as since the release of the report, there have been many calls for the removal of the jury as fact finder in such cases, including from academics, advocates, practitioners and police. In order to assist the public and political debate about whether rape cases should be heard by judge alone (assisted, or not, by lay jurors), our research compares various aspects of the trial process in adult rape jury trials (60 cases from 2010 – 2018), with 20 comparator cases from judge alone trials (“JATs”). This includes analysing the use of evidential and procedural rules, the scope and content of the questioning of the complainant and the submissions made to the judge, or jury. Anecdotal and some limited empirical evidence suggests that in JATs cross-examination is shorter, there is less reliance on “real rape” schema, and the issues at trial are more focussed. It is also likely that JATs involve less delays and pre-trial appeals, and the hearings are not disrupted by in chambers legal argument. There is also some research that indicates a difference in verdict choices between judges and juries in the specific context of cases involving allegations of sexual violence. In this paper, we will discuss some preliminary finding from the early stages of this research, funded by the New Zealand Law Foundation, which will be completed by the end of 2020.
Elisabeth McDonald is a Professor of the School of Law at the University of Canterbury. Elisabeth has particular expertise in the evidential rules relating to the prosecution of sexual offences. She was part of a comparative research project culminating in the publication of From “Real Rape” to Real Justice (VUP, 2011), which provided important background to the Law Commission’s 2015 project on alternative trial processes in sexual cases. Elisabeth is a regular consultant to the Law Commission and has been a Faculty member for the Institute of Judicial Studies (IJS) seminars on evidence and procedure since 2006. She has also delivered seminars for the IJS, Ministry of Justice, Police, MEDSAC and Crown prosecutors on sexual and family violence. She became a Member of the New Zealand Order of Merit for services to law and education in 2018.
Paulette Benton-Greig is a lecturer at Te Piringa – Faculty of Law, University of Waikato where she teaches in criminal justice and procedure and in socio-legal studies. Her areas of research relate to gender and sexuality and the law. Her current projects include an examination of contemporary rape trials with Prof Elisabeth McDonald (University of Canterbury), a socio-cultural analysis of online sex seeking in New Zealand, and the regulation of gender and sexuality in digital culture with Prof Nicola Gavey (University of Auckland).