Rape/Sexual Assault Culture

I'm not reading it that way.
First situation, you are asking for sex but providing nothing in return. At that point, you are the proverbial "perv" for doing so because there is no force, fraud, or coercion occurring. If payment for sex is involved, then that changes the situation.
Second situation, you are still asking for sex but providing nothing in return.

 

The Grace Millane trial has started in Auckland for those with strong stomachs

Just another girl who winds up murdered and buried in scrubland during a consensual sexual encounter involving strangulation I guess....

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12282835

 

This is one of the most absurd defence cases I have come across.

The accused claims the pair were intoxicated and had increasingly rough sex

• Accused claims Millane instigated the activity and said it became "more violent" and moved to the floor

• He said after he finished having sex he went and had a shower, and fell asleep in there

• He later woke up and went to bed, claiming he thought Millane had left

• He then claims he woke again later and found her still on the floor, dead with blood coming from her nose

He searched the Waitakere Ranges and "hottest fire"

• At 1.41am he watches a pornographic video on his phone via a website called Pornhub

• McCoubrey alleged that by this time, Millane was dead.

• "What (the accused) is doing here is trying to find a place to hide her body," said McCoubrey. "He wasn't distressed ... or concerned by her death."

• The accused accesses and looks at a number of other pornographic websites

• He then took seven intimate photos of Millane.

• The accused accesses more porn online

• There is then a gap in his internet use which the Crown says suggests he was sleeping

• 6am - six internet searches on his phone including "rigor mortis", car hire and extra large bags

• The accused goes to The Warehouse on Elliott St in the CBD, purchases suitcase

• He puts Millane in the suitcase

• He then makes several trips to Countdown on Victoria St to purchase cleaning supplies and a Rug Doctor

• Accused attempts to clean "the mess" in his apartment

• "He's clearly gone to some lengths to break any forensic link between him and Grace Millane," McCoubrey alleged

• The accused then takes taxi to car rental company on Victoria St

• He hires car and returns to City Life

• Accused captured on CCTV moving the suitcase containing body down to rental car and puts it in boot

• He then goes on a date with a woman at a Ponsonby bar. The date had been arranged earlier via Tinder and confirmed earlier in the day while Millane lay dead in his apartment

• McCoubrey told the jury the accused "doesn't seem concerned by the presence of a dead body in his apartment" at the time

• Millane's body remains in the car boot overnight

December 3

• Accused drives the rental car to Scenic Drive, digs a hole and buries suitcase

• Accused then drops clothes and linen at a dry cleaner, takes the rental car to Wash World at St Lukes and cleans it​

 

Something has to change about this stuff

A woman reports she was also assaulted, and near smothered by this creep. She says she was frightened of him but messaged with him over 700 times in the next month. She says she was scared that he knew a lot about her, and might come after her. She never actually saw him again, though he tried to get another date with her on the same day he murdered Grace!

So now she is on trial. Yet she was correct in her belief that this guy was not safe!

The poor witness in the Grace Millane trial is why women don't report assault. Our behaviour, in order to try to survive, is what ends up on trial.

— Monica Wales (@monica_wales) November 11, 2019

 

The point is she should not be on trial. She gave key evidence that he smothered her by sitting on her - similar to the Millane attack.

 

The problem is that the defence questioning plays into standard rape memes

Oh why did you keep talking him if he sexually assaulted you?

But lets assume for a minute that her evidence is correct

1. The accused did murder Grace Millane

2. In a prequel attack, he smothered the witness in a very similar sexual assault

3. He later tried to arrange to see her again on the very day he murdered Grace - likely to murder her

As I see it, the witness was in fact correct, that he was a very dangerous abuser and her life was in danger.

So as per the original tweet - people don't speak out, because they end up being on trial for survival behaviours that were valid!

It doesn't matter whether 3rd parties think she should have done something else. She did what she felt she had to do, in the context of a manipulative murderer.

 

As a qualified lawyer I am aware of that

What I think is not legitimate, is claiming that the woman must be lying because she stayed in touch with him

We know women stay in touch with abusive men. They even live with them.

The problem with this kind of harassment is then women don't come forward - and that is what happened in the stand. The witness was like "why the hell am i bothering?"

 

Well no. The rules of evidence can be adapted to ensure witnesses are fairly handled.

There has already been considerable reform in this area.

 

Rape shield laws prohibit irrelevant mining of a victim's past sexual history. But I don't know of any rules prohibiting evidence that a victim continued socializing, etc., with a defendant, as such usually is considered impeachment of credibility evidence and is very rarely deemed inadmissible.

 

Yes - that is precisely the issue here. NZ also has no such rules.

The witness is not the victim in this case. Grace Millane was strangled to death by the accused following a tinder date and dumped in a suitcase in bushland close to Auckland. He claims he strangled her "accidentally", then in a panic, covered up the crime.

The witness alleges she was smothered by the accused during a tinder date where he sat on her in a similar way to the Millane murder. She played dead hoping he would get off. Following the date they stayed in touch - she claims she was frightened of the accused, and he knew where she lived and worked etc. So she adopted a strategy to avoid seeing him, but to avoid angering him.

There is plenty of evidence the accused is dangerous to women, an accomplished liar, manipulative, etc etc, so in that aspect, her suspicions were correct.

The concern is that the defence counsel is allowed to harass the victim over conduct that is actually completely common for females who are victims of domestic / intimate violence.

So as the victim herself said, why even come forward?

There is actually no evidential basis to claim she is lying. Rather the defence simply wishes to interpret the subsequent messages to impugn her credibility.

 

As you're well aware, often times in criminal cases, the only defense is to call into question the credibility of the victim and/or prosecution witnesses. So what you're describing is not "not evidence" (apologies for double negative). It may not be very persuasive and certainly any witness should (and would) be allowed to explain why they didn't end all contact and/or present expert testimony as to why women often don't end all contact in such situations. But surely you don't think trying to undermine credibility (within certain parameters) should be prohibited? You'd have a confrontation clause problem if you ruled that way in a U.S. court.

 

I lack the trial experience to say what the parameters should be

But I do think there is a big issue when a sexual assault victim is harassed in the stand because their conduct is not what a man thinks it should be.

I feel that the question along the lines, "hey you stayed in touch, were you really so scared, why didn't you mention the attack in your texts" - IMO thats OK

This part IMO is over the line

"I'm not here trying to justify myself," she said.

"I don't want to be here [in court] ... because I was so embarrassed and ashamed that I put myself in a position that almost took my life," she said.

To that, Mansfield replied: "Can I suggest, this is just drama to justify the relationship with the accused."
​

To impute that she has made up a sexual assault to justify herself?

IMO that is out of bounds

 

Agreed. And if I was the prosecutor, I'd object to the last part and ask the court to strike it from the record and admonish counsel that if he/she goes down that road again, they'll be held in contempt.

 

Crown has wrapped up in the Grace Millane trial.

It's been particularly harrowing because of the huge amount of CCTV footage - they basically have the whole crime on camera, including him taking her out of his apartment in a suitcase.

This is really a product of an unusual murder, commited in a hotel room in downtown Auckland. I think the only similar case I have seen was "perfect dad" & triple murderer Chris Watts where key action was captured on police body cams.

There is a great fear that the defence is going to call former boyfriends of Grace to try and paint the picture she liked violent sex.

If this is really planned, I hope the Judge is very strict.

 

And under most Rape Shield laws here, the vast majority of that type of evidence would be inadmissible.

 

So interestingly the defence did indeed drive a bus through the NZ Rape Shield Legislation

e.g

1. A witness who had a one night stand with Grace with no strangulation / kink (how is this anything but slut shaming?)

2. A witness who merely friended Grace on a BDSM site but never met her, and had no relevant chats

I checked s44 of NZ Evidence Act 2006 (way after my time of course!)

It doesn't apply in murder cases. Only in sex crimes

IMO the judge should have disallowed both these on relevance/prejudice grounds

 

Sadly this is how we end up with this headline

'Naive and trusting' Grace Millane discussed being a 'slave', electric shocks and wearing gas masks with man she met on a kinky sex app, court hears - as another man reveals he slept with her the night before her death

how on earth is this evidence relevant at a murder trial?

 

I would agree it's not.