A discussion regarding a partial shift in the burden of proof in sexual violence offending in New Zealand: The search for justice on behalf of complainants

Abstract

A reversal in the burden of proof in regards to sexual violence cases is an issue that has been discussed and debated both publically and politically. The focus of this paper involves a reversal in the burden of proof in regards to the mens rea element. A defendant in a sexual violence trial would be compelled to testify as to why they reasonably believed consent to have existed. The standard this element would need to be proved to would be on the balance of probabilities. In this paper I offer a critique of the current criminal justice process and outline how a partial reversal in the burden of proof could directly address the most pressing concerns for complainants of sexual violence. I argue that this proposal is certainly worth informed discussion and public debate. My overarching argument consists of the recognition that sexual violence is a prevalent and detrimental issue in New Zealand society and requires immediate address. It is therefore important that useful discussions such as the reversal of the burden of proof receive attention.