The evidence about Grace Millane’s past put forward by the defence team was not only directly relevant, but treated carefully and with respect, argues Khylee Quince, associate professor in the School of Law at AUT.
When Oscar Wilde referred to the practice of law as “vulgar” he was likely thinking of the contest that is the criminal trial. Almost by definition criminal trials are difficult, messy and highly emotionally charged affairs. It is a forum in which alleged breaches of behaviour deemed socially and legally unacceptable are heard, often involving lurid and traumatic details of the worst harms human beings can perpetrate on one another. Trials involving allegations of murder and sexual assault are particularly unsavoury, requiring detailed examination of forensic and human testimony and evidence.
The Crown’s job in the adversarial trial is to test the case, to place the evidence before the fact-finder, who must consider it fairly and dispassionately. The accused is entitled to representation that challenges the crown case – they are not required to give evidence on their own behalf, but may seek to introduce evidence that raises doubt as to the Crown narrative of events. This contest can result in a robust exchange, which can be challenging and harrowing for complainants and their families or supporters, but this is the price to pay for a fair trial, in which the due process rights of the accused are upheld to prevent unfair convictions, while putting the onus on the Crown to prove beyond reasonable doubt.
During and after the trial for the killing of Grace Millane there has been much critical commentary about the introduction of evidence pertaining to Grace’s past sexual behaviours, including interactions with previous partners, her use of online BDSM forums, and her sexual preferences. Much if not most of that commentary has condemned the use of such evidence per se, claiming it is a “victim blaming” strategy, in which the complainant is unfairly maligned and deemed responsible for their failure to manage their sexual and physical safety.
I resist that characterisation of the use of such evidence in this case. In my view it was not only directly relevant, but was treated carefully and with respect by the defence team. The Grace Millane trial was not a sexual assault trial, it was a trial for murder. Juries are not required to give reasons for their verdicts, although it is likely that in this case they have accepted that the accused had reckless intent to murder. This means they believed he meant to cause Grace bodily injury that he knew to be likely to cause her death, and was reckless as to whether death happened. In other words, he intended to hurt her, knew she might die as a result and took that risk anyway.
The defence case claimed that the accused did not have reckless intent, rather that Grace was a willing partner to intercourse that involved the accused placing his hands around her neck, and that she died accidentally during the sex act.
If the jury hadn’t accepted the finding of reckless intent, they could have considered the accused’s liability for unlawful act manslaughter. In this case, that would mean finding him liable for an unlawful dangerous act, where death resulted, although he did not consider that as a possible outcome.
Consent is directly relevant in either instance, and remains so throughout intercourse. In New Zealand the law protects an individual’s right to bodily autonomy up to the point of consenting to grievous bodily harm. While it may be beyond the knowledge or experience of most citizens, this includes consent to risky and unusual sexual activities and assault, including those with elements of BDSM and strangulation. Of course sex that begins consensually becomes unlawful if at any time during the act a person withdraws their consent, or the accused no longer has grounds to believe they are consenting. The evidence tendered was to establish a belief that Grace consented to the initial act, and this seems a reasonable inference to draw from that evidence – on the testimony of her friends and from her digital footprint she had engaged in similar behaviour on previous occasions.
In the end, the jury did not accept the defence narrative, but that does not mean it was inappropriate to put it before the court to test the Crown case.
Don’t get me wrong, the claim of accidental death during “rough sex” is a concerning phenomenon on the rise, but this was not the case to hang that hat on. In this case, unlike most where an accused claims consent to lethal sexual violence, there was relevant plausible evidence that the victim might have consented to temporary restriction of her breath during sex. The UK website We Can’t Consent to This reports that “rough sex” has formed the defence strategy in the murder trials of 18 men charged with killing women in the past five years in that country, resulting in acquittals or a lesser conviction in nine of these.
As an aside, Jan Logie’s Sexual Violence Legislation bill, currently before the House, specifically relates to sexual violence trials, so would not have applied in the Millane trial. However, it gives us the latest view of the appropriate balance between the rights of the defendant and the victim in such matters. The bill seeks to reduce the trauma sexual violence complainants experience in court, including tightening rules around the introduction of evidence about a person’s “sexual experience or sexual disposition”. Such evidence is banned, unless a judge deems it directly relevant, and where it would be contrary to the interests of justice to exclude it. I have little doubt that had this been a rape trial, the evidence about Grace’s history would still have met that high threshold and would have been allowed in court, given its relevance to the issue of consent.
As unpalatable as it may be to the general public, the details of criminal offending and how we establish culpability can be challenging, but we should not sanitise trials merely to quell public distaste at the cost of the rights of due process and a fair trial for the accused, no matter how unpopular or unempathetic they may be.