'Mortifying': Victim responds to child rapist's defence that sex with 12yo was consensual

2:02 pm on 13 October 2022

By Ellen Thompson, Open Justice reporter of

file image. Photo: RNZ / Nate McKinnon

This story discusses graphic details of sexual abuse and may be upsetting for some readers.

Nearly 80,000 people were sexually abused in New Zealand during the past year. But, that number is far from an accurate reflection of the extent of the offending as the vast majority of victims never come forward. For those who do report the abuse, the process of giving evidence - where victims are often blamed or called liars - is especially tough and conviction rates are low. While a guilty verdict brings justice for some survivors, others say the sentences are nothing compared to what they have to live with for the rest of their lives. In a three-part series Open Justice talks to survivors who have been through the court process about whether there really is justice for people who are sexually abused.

When Sally Jones* was accused in court of having consensual sex with a man, despite only being 12 at the time, she felt like the whole world was against her.

She had been on the stand for hours, describing the years of abuse at the hands of Tulisi Leiataua and how that made her feel - both at the time and in the years since the abuse.

Then, during cross-examination, Leiataua's lawyer put it to her that there was no rape - she was just ashamed and regretful because she didn't want anyone to know she was willingly having sex with an older man.

"I was mortified. It felt like the whole world was against me at that moment. I also felt disgusted that he implied that I was lying."

Sally, who is now 24, said she was stunned when the lawyer suggested numerous times that the abuse at the hands of a man who was 21 years old than her was consensual.

"I felt like he wouldn't say such things if it was his own daughter or niece."

After the gruelling cross-examination in July, Leiataua gave his evidence where he claimed he didn't want to have sex with Sally but she actively pursued him. At one stage he told the court he kept refusing her but she "came at me like a slut".

Sally is not alone in her experience of not only being challenged - but blamed - on the stand. And, there's no law stopping it - a lawyer has the right to ask victims questions to get to the truth, and to use the defence of consent in a rape trial.

Despite only being 12 at the time, a jury could have found Leiataua not guilty of rape if they believed Sally really had consented. This is because the law says rape is based around consent, so the age of a victim is not relevant.

Tulisi Leiataua was jailed for 21 years for the rape and sexual violation of two girls who were aged 8 and 12 when the abuse started. Photo: Supplied / NZME

HELP Auckland executive director Kathryn McPhillips said lawyers frequently use "she wanted it" as a defence in rape cases.

"Unfortunately, they are also using this argument with people who were abused as children."

McPhillips believes the system focuses on the rights of the person who caused the harm, which in turn replicates the dynamics of sexual violence.

"In the court process, the victim is just a witness. We know that victims' rights are often not upheld in the trial process. "

"Defence usually attacks credibility so victims feel that they are the ones on trial."

She said it was time to change so that victims no longer felt like this.

"We would like to see substantive reform, which places the judge as the primary questioner, seeking to find out what actually happened, rather than an adversarial contest between lawyers," McPhillips said.

In the past 12 months nearly 80,000 people were sexually abused in New Zealand.

But, that figure is far from an accurate representation of what's happening behind closed doors. A recent Ministry of Justice survey found 92 percent of sexual assaults go unreported.

Chief victim's adviser Kim McGregor said around 65 percent of sexual violence cases involved children.

While Sally is now 24, the second victim, who was eight-years-old when the abuse started, is still a teenager. She described in court how Leiataua would threaten her to make sure she didn't tell anyone.

Leiataua's defence in relation to her allegations was that it never happened.

woman sitting on bed in room with light from window (abuse concept)

Only three in 10 cases of sexual assault reported to police will make it to court and only one gets convicted. Photo: 123RF

McGregor said it was disappointing to see how child victims are treated in court.

"We were all shocked and disappointed at seeing the evidence of the way children are cross-examined in court."

"Defence lawyers should be able to cross-examine a witness without sustained aggressive lines of questioning and repeated accusations that the child is lying," she said.

"There is a huge power imbalance, it's a child being cross-examined by a professional adult," McGregor she told Open Justice.

It was worth it

Despite what she was put through on the stand, Sally said she felt vindicated when the jury returned a guilty verdict.

And she said she would do it again if she had to.

"I would definitely go to the police and give evidence again because one, I had a team that made me feel safe and secure. Secondly, they made me feel like we were all in this together."

"Lastly, they believed in me. And that was the thing that gave me the strength and courage to stand up against the defence lawyer and the monster who said that it was consensual."

Leiataua was recently jailed for 21 years.

On the same day he was sentenced, Layba Zubair delivered a petition calling for consent law reform, with more than 12,000 signatures, to parliament.

Zubair told Open Justice that New Zealand law has loopholes that support the abuser rather than the victim.

"We kept our mission broad so that the government can work with policymakers and legal experts on how we can reform these laws, we never wanted to just tackle one issue."

Meanwhile, Sally said while she could only speak about her experience in terms of how sexual abuse trials were run in New Zealand - victims did need to be at the centre of them.

"Any form of sexual abuse is unacceptable. Victims need to be supported well and trials need to be thought of with the victim at the centre of any service or trial."

She was now grateful Leiataua was behind bars, saying she felt vindicated by the jury's guilty verdict.

"I was satisfied with the decision that the jury made and for me personally, justice has finally come."

Incredible Courage

Detective Inspector Shaun Vickers said Sally and the second victim showed "incredible courage" in coming forward to report what happened to them over a period of several years.

"Our investigation team worked with both victims over recent years to ensure they could tell us their story in confidence and to also support them through the investigation and prosecution phases.

"This was abhorrent offending inflicted on children, who should have been free to enjoy their youth."

Vickers said police would ensure the victims had access to any support they needed as they tried to move on with their lives.

He also encouraged anyone who has been sexually abused - or has concerns that someone is being abused - to come forward.

"Police take these matters seriously and we will work with them to ensure they can report these matters in confidence."