WARNING: This article discusses alleged sexual assault and may be upsetting to some readers.
By Shannon Pitman, Open Justice multimedia journalist
What began as a routine trial quickly veered off course as jurors appeared to fixate on the complainant, her underwear choice and her sexual history.
Within hours, their questions seemingly exposed outdated misconceptions about women and sex, forcing the judge to abandon the trial altogether.
The recent trial at the Nelson District Court involved a young woman who was allegedly sexually violated following a night out drinking with colleagues.
She had been getting to know one colleague, known only as person A, and went back to his cabin where he lived with other workmates, including the defendant.
She passed out and allegedly woke to a man removing her clothes and sexually violating her.
DNA testing established it was the defendant who she did not know, not person A, who had allegedly had sex with her.
As the alleged offending occurred over a public holiday, her reporting to police was slightly delayed.
A pre-trial ruling was made that the complainant was not to be cross-examined on her sexual experiences or perceived sexual interest in others.
Section 44 of the Evidence Act prohibits such questions without permission being obtained from the judge.
“The issues to my mind are whether she consented to the defendant having sex with her and whether the defendant had reasonable grounds to believe that she was consenting to him having sex with her,” Judge William Bill Hastings said in his pre-trial ruling.
A jury was sworn in and the complainant began giving evidence that afternoon.
When she returned to the witness box at 10am the next morning, the jurors submitted their first set of questions.
The jurors asked for clarification about a belt the complainant had described and how it was attached to her clothing, as well as what shoe size she wore.
They also queried “the reason for the time lapse from Good Friday until handing in for testing”.
The judge allowed the Crown to address the first two matters through further evidence, but responded to the third with the standard delayed‑complaint direction.
“Research shows that victims of sexual offences react to the trauma of what occurred in different ways. Some in distress or anger may complain to the first person they see. Others react with shame, fear, shock, or confusion and do not complain or go to the authorities for some time. There is no classical or typical response. A later complaint does not signify a false complaint any more than an immediate complaint necessarily demonstrates a true complaint,” the judge directed.
Two hours later, the jury submitted three further questions that brought the trial to a sudden halt.
“How many times had she had sex with a man prior to this situation with Mr [suppressed]?” they asked, followed by, “Her underwear— is it a typical style and colour she wears daily, or only for special occasions?”
The questions immediately alarmed the judge, who saw not curiosity but a concerning pattern.
Crown lawyer Jeremy Cameron applied for a mistrial, submitting the questions indicated the jury was engaging in impermissible reasoning.
Cameron also submitted the jury was adopting an investigative role and no direction could remedy the situation.
Judge Hastings agreed the jury was “entrenched” in misconceptions that could not be corrected with a simple reminder.
The judge found the questions reflected misconceptions that sexual history affects credibility, that clothing signals consent, and that certain behaviours make a complainant more or less believable.
“To my mind, the jury questions revealed legally impermissible reasoning at an early stage of the trial that were entrenched to such an extent and to such a degree that a strong direction would not cure the likelihood of a miscarriage of justice. A mishap has happened,” the judge said in a recently released decision outlining his reasons for discharging the jury.
“The jury having revealed its impermissible reasoning at an early stage, I do not consider that continuation of the trial, even with a strong direction, would have satisfied the ends of justice.”
Judge Hastings said he dismissed the jury with a brief statement.
“Issues have arisen which I have decided make the continuation of this trial unfair. Thank you for your service. You are discharged.”
A new trial began the following week, where a new jury found the defendant guilty of sexual violation.
General manager of a regional Rape Crisis centre Danielle Nicholson said the decision highlighted myths and misconceptions which influence how victims are judged and blamed.
“Questions about a woman’s sexual history or what she was wearing are rooted in outdated and harmful beliefs that incorrectly place responsibility for sexual violence on the survivor rather than the person who committed the harm,” Nicholson said.
“We challenge the harmful narratives that blame survivors and instead centre the reality that sexual violence is about power and consent.”
Nicholson said the decision was a reminder for the need for ongoing education and change not only in the justice system, but across communities.
“Survivors already face enormous barriers to coming forward. Outdated attitudes like these only reinforce fear, shame, and silence.”
Where to get help:
If it's an emergency and you feel that you or someone else is at risk, call 111.
If you've ever experienced sexual assault or abuse and need to talk to someone, contact Safe to Talk confidentially, any time 24/7:
• Call 0800 044 334
• Text 4334
• Email support@safetotalk.nz
• For more info or to web chat visit safetotalk.nz
Alternatively contact your local police station - click here for a list.
If you have been sexually assaulted, remember it's not your fault.
