Sexual assault trials: Radical reforms needed for New Zealand’s justice system - Deborah Chambers, KC
WARNING: This article deals with sexual offending and may be distressing.
Imagine it is your child. A little boy. A little girl. Three, or seven, or 12, or 14. Raped by a stranger or someone close enough to have been trusted. They are damaged for life. Would you put that child through a criminal trial to chase a conviction? If you yourself were raped, would you necessarily go to the police, given what the criminal trial process does to the complainant?
Most parents, if they are honest, say no. They will not hand their child to a defence lawyer and let that lawyer pick the child apart. Most adult victims say “no” too. That tells us the system is failing. The system we use for sexual abuse trials is still from the Stone Age. We dress it up as due process. What it often is, is a second assault conducted in public and called justice. What are we doing, putting a child in front of a sophisticated defence lawyer and asking them exactly where an offender put his penis, in the hope of finding an inconsistency, even a minor one?
In 2023 police recorded about 10,000 sexual assaults. Forty-four per cent of those reporting were under 18. Another 12% were adults reporting childhood assaults.
Offenders know what they are doing. I saw it as a prosecutor. They pick children because children make poor witnesses. They pick people with disabilities or previous sexual-abuse victims and young women for the same reason. Vulnerability is the point. Then the defence does what the system still allows. Take a child through the time they stole lollies from the dairy and lied about it. Put it to them that they tell lies. Dr Suzanne Blackwell found that in a national sample of child-sex trials, 79% of defence counsel directly accused the child of lying. A child cannot survive that against a trained advocate. It is not a fair fight.
Sexual offending sits in a different category from every other crime. Most sexual violence in this country is never reported. Over several Crime and Victims Survey cycles only about 8% of sexual assaults were reported to police. Car theft is reported about 80 to 90% of the time. Burglary about 40%. Then, of the slice that reaches a police station, most of it still dies.
Of the sexual assaults reported to police in 2022, only 37% had a charge laid within two years. About one in 10 of all those reported assaults ended in a conviction. Rape is worse. Of reported rapes, 28% reached court and 5% ended in a conviction. That is the crisis. Not a handful of false complaints. Proven false reports sit in a low single-digit to low double-digit range. The public conversation still treats “women crying rape” as the emergency. It is propaganda. We shrug at a conviction rate that looks like a rounding error.
An ACC-commissioned study estimated sexual violence cost New Zealand $6.9 billion in 2020. Most of that bill is not court time. It is lost work, health, and lives that never recover.
You cannot legislate a country out of its prejudices. The 2025 Gender Attitudes Survey is bleak. For example, 40% of men think false rape accusations are common. Those people sit on juries. Defence counsel know that.
Juries still arrive with myths about “real rape” the stranger, the fight, the immediate complaint, the torn clothing. Elisabeth McDonald’s study of adult rape trials found those myths still running through cross-examination and closings. Judicial directions are now mandatory. But research shows they do not reliably drive the myths out. In March a judge aborted a sexual violation trial because the jury started asking about the complainant’s sexual history and underwear, contrary to the judge’s direction.
Delay does the rest. Sexual violence files still commonly take more than two years. The complainants waiting cannot put the offending behind them while the trial hangs over them.
A wrongful conviction is a catastrophe. But so is a wrongful acquittal. The complainant is traumatised twice and less likely to report the next time. Other victims remain in reach of the same offender. A man who beat the charge does not get treated.
Blackwell interviewed New Zealand jurors after child sex trials. A conviction was more likely where there was a witness, similar fact evidence, or DNA, things that are rare in sexual offending. Jurors said they believed the child, then added there was “just not enough evidence”. One jury put it without shame: “There was no hard evidence. We really wanted a video of him doing it.” Some treated beyond reasonable doubt as “absolute proof”.
Parliament has been patching this since the 1970s. Last year victims gained a veto on permanent name suppression for convicted adult sex offenders, and children under 12 were taken off sexual violation charges so they would not be asked if they consented. Barristers still treat these trials as a blood sport.
Consent is the next, obvious step. New Zealand still does not define what consent is. The Crimes Act 1961 lists what it is not. Labour’s Camilla Belich has a member’s bill that would fix that: consent must be communicated by words or conduct; silence is not a yes; and a belief in consent is not reasonable unless the accused took reasonable steps to find out. That is already the law in Britain and in the Australian states. It is a moderate change. National now says it wants the same destination after the election. The only people who seem to be opposed are some criminal defence lawyers.
But I am advocating a much more radical overhaul of sexual abuse cases, which requires us to look much more critically at concepts that are immediately defended as sacred and cannot be touched. Look at the role of the court through a criminal defence lawyer’s eyes and it is confined to determining whether the Crown has proved the charge beyond reasonable doubt. The public still thinks a criminal court is there to find out what happened. I agree. That is its primary duty and the law should reflect that. An Australian judge put the problem of the system in one sentence: “The adversary system is about winning and losing. It is not about truth and justice. One side bears a very heavy onus to prove something in a mystery game dictated by a lot of technical rules that has nothing to do with truth and justice as the lay [person] would understand it.”
How did we get here? In part because the criminal defence bar has been given far too much influence. Defence counsel dominate the Law Society committees that speak on this. The Law Society does not go back to its members and ask them what they think before it files a submission to Parliament or to a select committee. NZLS’s pattern in this area is consistent and frustrating. It blesses the aim of treating complainants better, then opposes, waters down or delays the clause that would actually do it almost always on fair trial and delay grounds. The same can be said of the Law Association, whose criminal committee is defence-dominated. Ask female lawyers whether rape law desperately needs reform. Most will say yes.
If we keep juries, experts should be allowed to tell them what the research shows about rape myths. Evidence-in-chief and cross-examination should be pre-recorded. New South Wales now pre-records a child’s whole evidence, including cross-examination. Better: take these cases off the ordinary jury. Use specially trained judges sitting alone, or a mixed bench of a judge and one or two lay people, as used in Austria, Germany and Denmark. Judge-alone trials are much shorter than jury trials. That would speed the system. It would also take away the audience for tactics that only work on a jury. Lawyers who prosecute or defend a sexual case should have to have ongoing specialist training and accreditation.
If my child or grandchild was sexually abused in New Zealand, I would seriously hesitate to go to the police. It needs to be fixed, trunk and branch.
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