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Evidence Act 2006

Admissibility rules, privilege, and confidentiality - Veracity and propensity - Complainants in sexual cases

44AA: Evidence of sexual reputation of complainants in sexual cases

You could also call this:

"Rules about talking about a complainant's sexual past in a sexual case"

Illustration for Evidence Act 2006

In a sexual case, you cannot give evidence or ask a witness questions about the complainant's sexual reputation. The Judge can allow this in some civil cases, if you apply under section 44A and the complainant's sexual reputation is directly relevant to the case. This means it is relevant to a claim or a defence in the case.

If the Judge gives permission, they must be satisfied that the evidence or question is very important to the case and it would be unfair to leave it out. You cannot use this evidence to say the complainant agreed to a sexual act or to prove their reputation is true. The Judge does not need to give permission to respond to evidence that has already been allowed.

This rule does not allow you to give evidence or ask questions that are not normally allowed. You need to follow the normal rules for giving evidence or asking questions, even if the Judge gives permission under this section.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=LMS630796.

Topics:
Crime and justice > Courts and legal helpCrime and justice > Criminal law
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44: Evidence of sexual experience or sexual disposition of complainants in sexual cases, or

"What a complainant's sexual past can be talked about in a sexual case"

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44A: Application to offer evidence or ask questions about sexual experience or sexual disposition or sexual reputation of complainants in sexual cases, or

"Rules for talking about a complainant's sexual past in court"

Part 2Admissibility rules, privilege, and confidentiality
Veracity and propensity: Complainants in sexual cases

44AAEvidence of sexual reputation of complainants in sexual cases

  1. In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the sexual reputation of the complainant.

  2. However, in a sexual case that is a specified civil proceeding (as defined in subsection (3)), the Judge may give permission (on an application made under this subsection and in accordance with section 44A) for evidence to be given or a question to be put to a witness that relates directly or indirectly to the sexual reputation of the complainant.

  3. A specified civil proceeding, in subsection (2), means a civil proceeding in which the complainant’s sexual reputation itself is directly relevant to—

  4. a cause of action in the civil proceeding; or
    1. a defence in the civil proceeding.

      1. The Judge must not grant permission under subsection (2) to bring the evidence or ask the question unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding that it would be contrary to the interests of justice to exclude it.

      2. However, evidence (of the sexual reputation of the complainant) permitted to be given under this section cannot be used—

      3. to support a claim of consent, or of reasonable belief in consent, to an act of a sexual nature; or
        1. to prove the accuracy or truth of that reputation.

          1. The permission of the Judge is not required to rebut or contradict evidence permitted to be given under this section.

          2. This section does not authorise evidence to be given or any question to be put that could not be given or put apart from this section.

          Notes
          • Section 44AA: inserted, on , by section 8 of the Sexual Violence Legislation Act 2021 (2021 No 60).