Where to after Operation Clover?


The Police report on Operation Clover is depressing reading. It creates the agonizing impression that Police believe many girls were sexually victimized by boys in the so-called roast busters group. And it leaves the strong sense that our justice system is currently at a loss for how to effectively deal with this.


Might the decision not to charge the suspects in this case create a big enough crisis of confidence in our society’s ability control sexual violence that it re-ignites government commitment to make a real difference? We have been at this point before, in the aftermath of the 2006 acquittal of Shipton, Schollum, and Rickards. We made progress, and we stumbled. (Recommendations of the Taskforce for Action on Sexual Violence, released in 2009, fell into a black hole.) Two areas are begging out for urgent immediate intervention: long overdue law reform and proactive social measures to clarify the ethical goal posts for sex.


Detective Inspector Karyn Malthus’s report on the investigation into the ‘roast busters’ alleged crimes is an unusual gesture towards transparency in Police process. The ultimate failure to lay charges doesn’t appear to be a result of Police inaction or, over the past year, misguided action. The report describes lengthy, careful and proactive efforts to identify girls who were potential victims and boys who were suspects. One hundred and ten girls were canvassed – each meeting “the criteria that Police had concerns that they may be victims of sexual crimes and in need of victim support”. Of these, 44 girls “were identified as remaining of concern”. This included (1) girls who made disclosures “that appeared to meet the threshold of criminal offending”, (2) girls who “‘denied’ involvement in any sexual activity” but who were identified by other girls, or in some cases eyewitness accounts, and (3) girls identified by suspects, as being involved in what the suspects claimed was consensual sex. Of those 44 girls, five made formal statements to the Police.


There was enough evidence relating to another twenty-five girlsthat they were requested to give formal interviews to the Police. These girls decided not make formal complaints. Their reasons make perfect sense – and those reasons are an indictment more than anything else on “rape culture”. Some were concerned that they could be perceived to be responsible for consenting to some sexual activity and some did not want to give evidence in court. “An over-riding concern”, according to the report, was girls’ “fear of bullying and harassment by their peers as well as the fear of being exposed in the media”. As Malthus notes, girls’ fears of bullying are realistic. “Many girls” had moved schools after being harassed and bullied both online and in person. Clearly, the formal complaints made to the Police are just the tip of the ice-berg of what has been going on.


Police identified five “suspects” – boys who were the subject of formal complaints. They also identified 30 more “persons of interest” – boys who had been named by girls for actions that were “sufficiently concerning” to Police that they sought to interview them. But because there are no formal complaints relating to those 30 boys, the investigation could not proceed with them, even in cases where there was eye-witness testimony. Taking a “victim centric” approach Police rightly had to respect girls’ rights to privacy, and not disclose their accounts in the pursuit of evidence, when that was a girl’s wish.


The offences in the case are serious: sexual violation (rape and unlawful sexual connection) and sexual conduct with a person under 16, which carry maximum sentences of 20 and 10 years imprisonment, respectively. The boys interviewed as suspects were reportedly “adamant” that the sexual violation identified in the five girls’ formal complaints was consensual sex. I could be wrong, but my impression from the report is that the Police don’t believe this. And this is where things presumably got bogged down by the technicalities of our laws and formal guidelines for prosecution.


As we know, following advice from the Auckland Crown Solicitor, the investigation has concluded with no charges being laid. This is extremely disappointingly. What we cannot tell from the report are the exact reasons why the Police decided not to charge the suspects identified in the five girls’ formal complaints. At this point transparency fogs up.


The media reporting has been uneven. I am not a legal expert, but I think we need to unpack what is meant when it is said the reason for this decision was a “lack of evidence” – which is how it has sometimes been reported. It seems that the problem is not so much a lack of evidence per se – but a lack of evidence in a very technical sense.


According to the Solicitor-General’s Prosecution Guidelines (2013), a prosecution should only proceed if the evidence “is sufficient to provide a reasonable prospect of conviction”, and if it is required in the public interest. It would be impossible to argue that seeking justice in the ‘roast buster’ case is not in the public interest. So presumably the evidence amassed was not considered robust enough to stand up in court. This does not mean that there was no evidence, or even that there was necessarily “insufficient” evidence (a misleading shorthand written into the Guidelines themselves). This so-called ‘evidential test’ requires that “there is an objectively reasonable prospect of a conviction on the evidence”. The Guidelines go on to admit that “the apparent cogency and creditability of evidence is not a mathematical science, but rather a matter of judgment for the prosecutor” and that “in forming his or her judgment the prosecutor shall endeavour to anticipate and evaluate likely defences.”


The formal requirement to anticipate and realistically appraise defence strategies is where the black and white edges of the law come face to face with the messy prejudices of the society it represents. There is an abundance of research to show that ‘rape myths’ shape decisions at all layers of the criminal justice system. These ‘myths’ are stereotypical and inaccurate assumptions about rape, rapists, and victims, which typically minimize and excuse sexual violence. These include victim-blaming (and perpetrator rescuing) notions that women are ‘asking for it’ if they dress in certain ways or if they drink too much, or if they go to certain places, or if they consent to some sexual activity. They also include assumptions about how a woman would and should act if she has been raped, that reveal a profound lack of understanding about how disempowering and stigmatizing the experience can be. And about how silencing a hostile, harassing, victim-blaming peer culture can be.


I want to reject the idea that there was “insufficient evidence” to proceed with these charges and insist that we talk about the real problem. That is, that very good evidence (from a lay point of view, as well as a psychological and social point of view) might not be able to propel a case forward because the evidential test is unrealistic for many cases of sexual violence. If a case cannot be prosecuted because a conviction is a long shot, and if the reason for that is because the evidence will be viewed through a filter of normative misunderstandings and prejudices that could be sympathetic to defence attempts to discredit victims … then aren’t we trapped within a circular logic that helps to perpetuate the very dynamics of “rape culture” that makes rape possible in the first place, and prevents justice for women who have been sexually violated?


Without a more nuanced account of why a case like this could end up with charges not being laid, it also makes it possible for ludicrous and dangerous conclusions to be drawn. For example, a family member of one of the key suspects publicly claimed that he has been vindicated. The Police report gives absolutely no weight to this interpretation.


The solution isn’t easy or obvious. It will always be a delicate business weighing up whether or not to take a rape complaint to trial. The biggest issue, currently, is that the pursuit of justice relies on putting people who have been made vulnerable by the crime being tried through a potentially traumatising process. Their treatment in court by defence lawyers is often brutal, and it is not uncommon for women to describe the experience as like a second rape. This has to change.


What can we do for change?


So, what can we do to improve the system, so that (1) it is impossible to imagine any tolerance let alone kudos for boys who celebrate methods for coercing and/or forcing girls to have sex with them, and (2) that the criminal justice system is better able to deal with sexual offences, making the process fairer than it currently is for survivors of sexual violence?


I think there are two do-able things that should be kick-started immediately: A review of our laws and formal guidelines and a high profile public awareness campaign to promote sexual ethics and say no to rape.


Already there have been many calls for renewed attention to our laws as a result of the outcome of Operation Clover. It is time for the government to embrace this challenge. We have an excellent platform of research-based recommendations in Elisabeth McDonald and Yvette Tinsley’s review of options for how to reform the way we deal with sexual offending through the courts, and the Law Commission’s 2012 Issues Paper makes an important start in considering possible reforms to pre-trial and trial processes. It may also be necessary to envisage broader notions of what justice could look like. In some cases long prison sentences may not be the most constructive solution.


In terms of the law itself, I think an opportunity was missed in 2008 to clarify the way consent is and should be defined. Currently the law explicitly lists a range of circumstances in which “allowing sexual activity does not amount to consent”. These include being so affected by alcohol that it is not possible to consent or to refuse consent. The law also specifies that the absence of “protest” or “physical resistance” does not automatically constitute consent. However, I think the legal framing of consent could be strengthened. Many similar jurisdictions have moved to a model that specifies a more “positive definition” of consent – which explicitly writes into the law that it must be free and voluntary agreement.


Currently the definition of sexual violation excludes cases where the accused acts “believing on reasonable grounds” that the other person consented. Surely we have to reconsider this escape clause. Canada, for instance, explicitly restricts the option of a defence based on “honest belief in consent”. It excludes it when “the accused’s belief arose from the accused’s self-induced intoxication, or where the accused’s belief arose from the accused’s recklessness or willful blindness or where the accused failed to take reasonable steps to ascertain whether the complainant was consenting”. The combination in our law of a passive notion of consent and a vague reasonable belief defence together create a real impediment to justice.


Social science research suggests that men do know how to read a woman’s cues for whether or not she wants sex; it also shows that some men freely admit to deliberately ignoring these cues when it suits them. It is not reasonable to claim that sex is consensual if it follows persistent sexual pressure that is met by ongoing reluctance, resistance, or tense resignation. At best it is disingenuous. At worst, and when a woman says there was no consent, it surely must be treated as nonconsensual. As philosopher Lois Pineau said, sexual interaction should look like “a proper conversation rather than an offer from the Mafia”.


“Rape culture” remains the elephant in the room. While nearly everyone is outraged at rape, many are dismayed at the “lack of respect” these boys showed towards girls, not everyone is willing to look in the cultural mirror and reflect on how this behaviour is rooted in norms and behaviours that seem more ordinary and taken for granted. Victim-blaming is still rife, young women and girls are still denigrated and potentially stigmatized for being ‘too’ sexual, and it is still normalised for young men and boys to regard women as sexual playthings.


Norms and values that make rape possible are woven right through our society in more and less subtle ways. For this reason I don’t think school-based education or small-scale social media campaigns are ever going to be enough to make a lasting difference. They are part of the solution. But we have to change the world that young people live in rather than treat them as the problem to be fixed. What we need is a high profile mass media campaign to promote a whole new vocabulary and set of norms around sex. Like the “It’s Not OK” campaign against domestic violence, a campaign like this has potential to slowly but surely chip away at norms that make it possible for young men to claim abusive exploitative sex as consensual. With a strong, clear, and inclusive message, it would have the potential to become a shared reference point for everyday interventions. It would challenge excuses that some young men might use to justify a bulldozer approach to sex. It would provide a tool for supporting others who want to stand up against abuse when they see it happening. And it could help young women to believe that if sex is forced on them without their consent it is not their fault.


A lot is already happening in New Zealand, but it is too piecemeal and too dependent on insufficient and uncertain funding. It is time for the government to step up and support, develop and extend this important work in a way that is more integrated and sustainably resourced. This includes properly funding services to support people who have experienced sexual violence to rebuild hurt lives and to go through the criminal justice system if they want to. It includes prevention education in schools and through social media. In developing this work further, some of what needs to be done might seem counter-intuitive. For example, rape prevention education in schools must in my opinion go hand in hand with positive sexuality education. Discussing and endorsing sexual desire and pleasure for girls in particular is actually an essential ingredient in clarifying what sexual coercion is. And teaching sexual ethics, upon a foundation of ethics taught more generally from an early age, seems obvious. While New Zealand has an excellent sexuality education curriculum (under redevelopment this year), it is shameful that it is not compulsory for all schools to teach it to all students. This is an issue of public good, so an opt-in approach makes no sense. Promoting consent is necessary as a bottom line, because consent remains an important principle in our law. But as a model for guiding ethical (and legal) sexual interaction it is not aspirational enough. I would prefer young people (all people for that matter) to expect that “having sex” is something that people do when they both reallywant to, rather than when one person simply agrees to another person’s invitation.


These are all starting points. For more egalitarian norms for sex to really take hold, we also have to tackle gendered power and privilege, and especially what it means it means today to be a man. But that is another conversation.


There is an enormous amount of expertise in New Zealand that could be harnessed in a coordinated and sustainably resourced way to give us a real chance to lead the world in stopping sexual violence. We are waiting for the government to take the lead and put in the money to make it work.


Nicola Gavey