Sexual violence reform - change at last

For years New Zealand has dragged the chain on tackling one of the most pressing legal issues facing the country – the way in which sexual abuse cases are handled by the justice system.

With just one in a hundred sexual assaults resulting in a conviction, it is beyond dispute that large numbers of women are being denied justice while their assailants are allowed to roam free and in many cases reoffend. Such is the extent of the problem, it is estimated that only seven out of a hundred sexual assaults in New Zealand are reported to police, with only three in a hundred cases making it to court.

In recent years there have been a number of worthy attempts to address this issue but all have failed to get any meaningful traction. In 2008, the Ministry of Justice released a document entitled “Improvements to Sexual Violence Legislation in New Zealand”. A year later, the Taskforce for Action on Sexual Violence proposed that sustainable funding should be provided for a sexual ethics course and a public education programme.

Then, in 2011, the book From Real Rape to Real Justice: Prosecuting Rape in New Zealand (by Yvette Tinsley and Elisabeth McDonald) was published. It outlined detailed proposals for reforming the prosecution of sexual offences, including the expansion of specialist police units for sexual offending, specialist training for all those involved in sexual offence trials and the use of judges rather than juries in such cases.

Finally, in 2012, the Law Commission released an issues paper entitled “Alternative Pre-Trial and Trial Processes: Possible Reforms”. The document discussed whether the current adversarial model should be replaced by an inquisitorial system. But this was shot down by then Justice Minister Judith Collins who said it would be impractical to have an inquisitorial system for sexual offences but not for other cases, as sexual offenders might also face other charges – a major blow for those campaigning for change.

Just when it seemed that the Law Commission’s review was dead in the water, the Hon Amy Adams replaced Judith Collins as Justice Minister and reactivated it in 2014, paving the way for a new report called “The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes”, which was released just before Christmas.

The Commission’s 82 recommendations have received much acclaim. In essence, the Commission has proposed three major changes, including piloting a specialist sexual violence court, establishing a Sexual Violence Commission to give victims more support and offering an alternative justice process outside the criminal system if sexual violence victims preferred.

Other recommendations include shortening the time it takes for sexual violence cases to reach trial, employing less traumatic ways of giving evidence by victims and giving special training for judges and lawyers.

Commission President Sir Grant Hammond told Law News the recommendations “represent a necessary, fundamental change to the way the criminal justice system supports victims of sexual violence”.

“There may be many reasons why victims choose not to report to the police. However, it is clear that amongst those reasons is the fact that victims can find the criminal justice process traumatising, frightening and that victims risk being re-victimised by going through the criminal justice system. “We are therefore faced with a group of victims who do not want to partake in the criminal justice system as it is currently and a group of victims who do not want to participate in the criminal justice system, even if it is improved, because they do not believe that the system meets their justice needs.”

In response to questions submitted by Law News, Sir Grant outlined how some of these issues would be addressed.

How would the sexual violence court work? Would it operate with a jury or judge alone and which would be your preference?

“We have recommended that the court first be trialled as a pilot in one or more District Courts, with subsequent consideration given to whether it should be legislated as a permanent division of the District Court after two years’ operation. We do not provide specific detail about how the pilot court should operate, rather we recommend that its core aims should be to bring specialist judges and counsel together in a venue that enables fact-finding without re-traumatising the complainant. We also recommend that every District Court and High Court judge who sits on a sexual violence case should be required to have a designation to do so, which would involve the completion of a special training course. We make the suggestion that sexual violence trials may not be well-suited to fact-finding by a jury comprised of 12 laypersons. However, the design of an alternative needs to be carefully considered, and it would need to be justified as a reasonable limit on the right to jury trial in the New Zealand Bill of Rights Act 1990. Such an exercise was beyond the scope of this project.”

Why is it so important for the court to have specialist judges and lawyers?

“We consider that sexual violence trials require the application of a specialist approach to a particular area of law. This is so that the judges and lawyers are better able to address the complexities or sensitivities that arise in the area of sexual violence. For example, research has shown various misconceptions and preconceptions that exist relating to sexual violence and these must be managed accordingly – specialist training helps the relevant individuals to recognise and respond to issues. Participants in the court process can refine their skills by accruing specialist expertise. Court cases can be handled more consistently, more efficiently and more appropriately to overcome the barriers that might otherwise be encountered in such cases.”

To what extent would the new court reduce the waiting time for trial?

“Lengthy periods waiting for the case to be set down for trial and waiting for the trial itself may negatively impact a complainant’s personal circumstances and psychological recovery. To target the issue of delay, we recommend a statutory limit on the time that a case involving sexual violence takes between when charges are filed and when the trial itself takes place. We have not recommended a specific time limit because we did not consult adequately on this point. However, a time limit of 12 months from the time of filing of charges to the time the case is set down for hearing might be appropriate (and achievable, given the mean disposal time of a sexual violence case in the District Courts in 2014/15 was between 14 and 15 months). This time limit could be achievable by a specialist list put in place to operate a specialist court. In addition, we recommend that complainants should have greater access to the ability to prerecord all of their evidence before trial and at a point in time that is closer to the alleged incident of sexual violence, including evidence given in cross-examination where appropriate.”

Could you explain how the alternative process allowing victims to meet perpetrators would work and what it would achieve?

“In brief, the process would provide for a victim and perpetrator to complete a programme run by an accredited programme provider that addresses the harm caused by the sexual violence in the way that best meets the victim’s justice needs. The goal would be for the victim to attain a sense of justice and for perpetrators to take responsibility for their actions. This may mean a victim meets with a perpetrator (either in person or through a statement made in a letter etc) to tell their story and seek redress (for example reparation, an apology or an undertaking to stop). A victim would choose to enter the alternative process and a perpetrator would have to consent to be involved. If this process was successfully completed by a perpetrator, the incident of sexual violence could not form the basis of a subsequent criminal prosecution. If the process was not successfully completed, a victim would still have the option to make a complaint to police and proceed through the criminal justice system.”

Will parties using the alternative process be outside the criminal justice system and, if so, what are the implications of this?

“Yes, in the sense that there will be no charges laid nor will the matter proceed through court. If the victim and offender went through the process and agreed to outcomes which were fulfilled then there would be a statutory bar on the perpetrator being prosecuted in respect of the same incident against the same victim. There would also be statutory protections that would apply even if the alternative process was unsuccessful – so that, broadly speaking, participation in the process and statements during it made would not be able to be used to either initiate criminal proceedings, nor during the course of any subsequent criminal proceedings, in relation to the same incident.”

Could a situation arise where an offender involved in the alternative process could admit to rape and face lesser sanctions than someone convicted under the current system and, if so, what are the implications of this?

“Whilst a perpetrator who completes the alternative process will not face sanctions such as imprisonment, the alternative process should not be considered a ‘soft option’. To successfully complete the alternative process the perpetrator needs to take responsibility for the harm his or her actions caused the victim and make redress – which may be making a genuine apology, participating in a treatment programme, paying reparation etc. The disproportionate outcome for someone pleading guilty to a rape through court cannot be denied (it will undoubtedly be a term of imprisonment). However, as indicated above, we envisage that the alternative process will primarily be used where the victim and perpetrator are known to one another and, currently, many of these cases are not reported and therefore the perpetrator is not being held accountable in any way (one of the reasons for non-reporting being that victims want the offending to stop but do not want a family member to go to prison).

“Secondly, it is generally accepted among those we consulted, particularly those in the sexual violence sector, that the custodial presumption in section 128B(2) of the Crimes Act 1961 and the high sentencing tariffs that attach to sexual violence offences are a contributing factor to under-reporting. This factor, combined with the high burden of proof, means that perpetrators have a strong incentive to aggressively defend a charge rather than to admit it. Whilst our report does not consider a change to the custodial presumption or propose amending the maximum penalties that attach to sexual violence offences or guidelines for their imposition, a review of these factors could be warranted in the future in order to address these issues.”

What are the consequences if there is further inertia and inaction on this issue?

“Failure to take up the recommendations in this report would mean that there would continue to be victims of sexual violence that did not have access to justice. As a society, we have no choice but to act and I believe that the time is right and that this report should be the start of much change in the way we, as a community and as a legal system, respond to and support victims of sexual violence.”

In terms of other viewpoints on the proposals, Auckland barrister and journalist Catriona MacLennan told Law News she would like to see piloting of a specialist sexual violence court as soon as possible but says it is crucial for judges, prosecution and defence lawyers to have extensive training.

“The training suggested by the commission for lawyers would not be adequate. Training for lawyers about sexual and domestic violence needs to start in law school and should continue once lawyers are practising. Without that, lawyers will continue to make use of the same rape myths which are currently preventing victims from obtaining justice, such as that women wearing short skirts invite rape, women out after dark deserve to be raped or drunk women invite rape. One recent example of this was when Wellington barrister Keith Jefferies in a 2013 trial told the jury the victim could simply have closed her legs if she did not wish to be raped.”

Ms MacLennan says the Law Commission’s suggestion that juries could be phased out in sexual violence cases is “well worth exploring”.

“I support moving to judge-alone but only if judges have extremely in-depth education and training first of all. It would be better to have a specialist judge sitting, possibly with assessors who have knowledge and understanding of sexual violence.”

Asked for her views on an alternative justice process outside the criminal system, she said there would need to be significant funding to make it work properly, not to mention many safeguards.

“The government is currently introducing restorative justice in domestic violence cases. This is resulting in some domestic violence victims coming under intense pressure to agree to restorative justice when they do not wish to do so and when their safety is not adequately protected.

“If an alternative process is to be considered for sexual violence cases, victims would need to be assured that their views would be respected and that they would not be pressured to agree to the alternative process when they did not wish to do so. I am also concerned that alternative processes would lead to a downgrading of the seriousness of sexual violence, since the way our society deals with the most serious offences is through the court system.”

Fiona Landon of the restorative justice organisation Project Restore told Law News the Law Commission has done “a great job of bringing together divergent views into a pathway forward”.

“We consider these recommendations a great step forward in relation to the alternative processes but think they could have gone further regarding changes to the criminal justice system.”

She says the organisation supports both the sexual violence court and the alternative process for resolving sexual violence cases but that “we would have liked to see them go further in some of the recommendations regarding jury trials and specialist courts”.

“We have significant reservations about using alternative processes for cases involving intimate partner violence and agree that, at the very least, in the pilot stage these cases should be ineligible if there is any risk of further harm to victims. We believe these cases should be carefully reviewed by those with expertise in the complexity of intimate partner violence.”

Ms Landon says Project Restore supports the need for specialist personnel who are trained and experienced in sexual violence work.

“We believe this to be critical to the safety and success of the process.”

Justice Minister Amy Adams said she was still working her way through the Law Commission’s report and was not in a position to make in-depth comments about its recommendations.

“There’s a long way to go as Cabinet hasn’t yet had a chance to discuss them, but what I’m excited about now is that we can have a good debate about what we can do differently, how we can make things better and it’s the beginning of a pretty exciting conversation. Obviously, the judiciary and the law profession are a huge part of this and nothing will work unless we can get buy-in from them and the Cabinet and we need to be talking to all of them to come up with systems that we think can work and that they’re prepared to support.”

 Asked whether she thought the concept of an alternative justice process outside of the criminal system would allow offenders to escape punishment, she said:

“There is going to be some good robust debate around that non-criminal alternative, but it’s only one of their proposals.

“Clearly, the challenge is going to be making sure we get the balance right so that victims feel they’ve had their day in court or had their resolution but we’re not letting perpetrators off scot-free. You wouldn’t want repeat offenders going through it time and time again, so these are all the questions we have to ask, but I think we all have to challenge ourselves by saying ‘what we’re doing, is it working?’.

“We need to be brave enough to consider some new options. It doesn’t mean that everything’s a good idea but we should certainly be open to every idea as a starting point.”

So the scene is set for a major talk-fest that could have profound implications for victims of sexual abuse.

Whether the government cherry picks what it wants from the Law Commission’s report or fully embraces it will be watched with interest, as indeed will be the response of the judiciary, which may find some of the suggestions a step too far.

Whatever the case, all the participants in this debate will be mindful that the time is long overdue for the many women scarred by sexual violence to receive the justice they have so long been denied.  

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