Sexual assault prosecution: where’s the science fit in?

Saturday, February 18th, 2012

The NZ Law Commission this week has opened consultation on Alternative Trial Processes including potential changes in the way sexual assault cases are prosecuted. In the introduction to the consultation paper it states:

The limitations of the adversarial system in general are particularly profound in cases of sexual violence. The adversarial trial model is ill-suited to dealing with cases involving allegations of sexual offending. This is evident in the high attrition rates applying at all stages of the criminal justice system with respect to such cases. The limitations of the system are also evident when dealing with other categories of cases, such as family violence and child abuse. It was these concerns that led to the Commission’s current reference.

The NZ Herald runs an interesting story about whether or not it is appropriate in such cases to alter the jury format from the current 12 lay members and a judge to a judge and two semi-professional jurors.

The scope of the Commission’s remit is broader than just that one area and includes other suggestions such as having only lawyers who are specially or additionally trained in dealing with these cases being able to prosecute/defend them.

The Commission states:

Lawyers appearing in cases that require particular specialisation (for example, because of the difficulties and dynamics of dealing with the sorts of witnesses involved or the complexities of the evidential rules) may generally appear without any additional training and without restriction or supervision. That may lead to the presentation of evidence in an inappropriate way; to unduly aggressive or oppressive cross-examination; and to outcomes that depend more on the performance of counsel than on the intrinsic merits of the case.

About judges it has this to say:

Unlike civil law jurisdictions, judges do not emerge through a judicial career path. They are appointed to the Bench after an extensive period in legal practice, usually as a lawyer in the private sector. They may have specialised in commercial, family, environmental or another specialist legal area, or they may have had a general practice with little criminal law. They therefore do not necessarily have an extensive background in criminal litigation. What training they do receive is generally “on the job” and through seminars arranged by the Institute of Judicial Studies.

Moreover, in the absence of any training or additional information, they may approach particular sorts of cases (notably sexual violence and family violence cases) with some of the array of myths and prejudices about such offending that jurors will bring to the task

I agree with the Commission that it would preferable for lawyers and judges in these cases to have additional training.  My reasons are, predictably, far more science-focussed.

The thing about sexual assault cases is that there can be several elements of science involved in them and the results are often critical in establishing the facts of the case. Many cases are “he-said-she-said” and come down to the credibility of the witnesses.  These cases therefore are helped by any independent information that can be tested before being accepted as evidence.  These could be anything from:

  • how any medical examination was undertaken, whether or not the examination was undertaken using the proper examination kit and whether there is any information in the examination notes that is important but hasn’t been fully considered in light of the case as it develops;
  • whether DNA could or should have been transferred from one party to another if the events occurred as described by each party and how significant is it if it was/wasn’t;
  • how to interpret DNA results if there has been social contact between the parties or the parties are blood related;
  • condom analysis for flavouring and/or lubricant and the significance when these are or aren’t found;
  • whether or not the analytical work completed was appropriate for the case or whether more could have been done and whether more can still be done;
  • if alcohol/drugs were involved, is it possible to indicate how these could have affected any of the parties and, indeed, any witnesses to the incident.
  • before we even get to the scientific examination and analysis, were items collected and stored in the correct manner so that we know they weren’t accidentally contaminated or the results compromised?  For example, making sure that wet swabs for DNA analysis are dried – warm, damp conditions can cause DNA to deteriorate, thus compromising what results could have been available.

To cover all these types of issues requires several different scientists (e.g. those who examine items and record findings, collect the samples, and select the samples for examination; those who conduct DNA analyses; forensic toxicologists who analyse body fluids for the presence of drugs and alcohol; specialists in condom analyses).

Being aware of all of this all requires some scientific knowledge on the parts of the courts and lawyers, particularly defence lawyers who do not have unlimited access to the Police’s contracted scientists.  Science changes with time so methods improve and what can be achieved with science changes.

It would be extremely helpful to train lawyers in the outline scientific issues that crop up in these cases.  It is many an occasion when I hear a lawyer say that they didn’t like science at school and don’t like it when they have to deal with scientific reports – in those cases, let the scientists help!  We love science and should be good at explaining complex issues in an easily understandable way to anyone who needs to know.

Science shouldn’t be a barrier to understanding the factual basis of a case: it should be the way to make the court’s job easier by getting rid of some of the smoke and mirrors that can go on.  All we have to do is make sure that the court has an awareness of when science can help – let’s hope this review can help with that.

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