Alternative pre-trial and trial processes: A HELP perspective on possible reforms.

These are some possible responses developed by Auckland Sexual Abuse HELP to the Law Commission consultation on ways to develop pre-trial and trial processes which “improve the system’s fairness, effectiveness and efficiency”.

We regard this consultation as a once in a life-time opportunity for significant changes to be made to the ways that we respond to sexual violence in this country. In general, we support the changes outlined as we believe that they could:

  • reduce the additional harms that the justice process can cause to victims/survivors
  • provide more appropriate and constructive responses to those who have caused harm through the perpetration of sexual violence, and
  • ultimately reduce the occurrence of sexual violence in our communities.

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Alternatively post it to: Law Commission, ATTN: Alternative Trial Processes Consultation, PO Box 2590, Wellington 6140, New Zealand

Or: Copy and paste the following into the submission form provided here.

If you wish to write your own submission – great! Please feel free to use this submission as a guide.

Template Submission

Alternative Pre-Trial and Trial Processes: Possible Reforms

Submission from:

Contact details:

Background: You might want to introduce yourself and your interest in this area, whether that be that you are a concerned member of the community, a victim/survivor, someone who has perpetrated sexual violence or someone else impacted by sexual violence or other crime.

Section Two: Pre-trial

2A: Laying and reviewing charges

Possible reform

  • The complainant would be able to request a review of initial charging decisions (whether or not to charge and which charge is laid).
  • The review would be conducted by a senior prosecutor who specialises in sexual offence cases.
  • This possible reform would apply to sexual offence cases only.

I/We support this possible reform.

  • It can be disempowering, re-victimising and re-traumatising for a person who has been harmed by sexual violence to be told that there is insufficient evidence to proceed to prosecution in order to hold the person who has harmed her/him accountable for that harm, or for charges to be laid which do not reflect the survivor’s experience of the event about which they made a complaint. Therefore, so that they can make sense of the decision not to prosecute, it is important that victims/survivors have the opportunity to be fully informed of the reasons.
  • It is also important if the prosecution is to proceed that victims/survivors understand the rationale for the charges that are laid, particularly if they are significantly different to what they expected.
  • To give the survivor/victim of sexual violence confidence the decision has been appropriately considered, it is important that the case can be reviewed by a senior prosecutor who has specialist knowledge in sexual violence dynamics and considerable experience in prosecuting cases of sexual violence.
  • One of the key dilemmas for complainants in sexual assault cases is that while the harm was done to them, they are “sidelined” as a witness in the justice process. This does not reflect the deeply personal nature of the crime. With most SV complaints not making it to court, the right for review of a decision not to prosecute would assist in acknowledging the personal nature of this crime in this process.
  • We would like to see this done in a collaborative way, with an Independent Sexual Violence Advisor (ISVA) involved at this stage to support the survivor/victim in understanding the process and link her/him in to other services or processes e.g. restorative justice.

2B Role of victim in pre-trial process

Possible reform

  • The victim would be able to request a review of any decision to amend or drop charges. If the decision was that of a police prosecutor, the review would be carried out by a senior prosecutor. If the decision was that of a Crown Solicitor, the review would be carried out by a Crown Solicitor based in a different area. This right of review would not apply to decisions to amend or drop charges in the context of a court appearance, where the decision is made in front of a judge.
  • This possible reform could apply to sexual offence cases only; to a specific range of offences; or to all cases.

I/We support the possible reform for a right of review to any decision to amend or drop charges.

  • The rationale for supporting this is the same as in 2A.
  • We do not support the exclusion of a right of review where charges are amended or dropped in a court appearance, where the decision is made in front of a judge. In such a situation, the complainant should be represented in court to ensure their views are heard and taken into account. If the Crown Prosecutor has not sought those views, then the court appearance should be adjourned to ensure those views are taken into consideration.
  • With a wider scope, we believe that complainants should also have the right to request review of a judge’s decision. Current routes for challenging judicial decisions are inadequate given the degree of harm which can be caused by those decisions. The complainant’s views should have a strong influence on whether the Crown appeals a judge’s decision. We consider this important for justice to be achieved.

2C: Guidelines for prosecution of sexual offences

Possible reform

  • Separate guidelines for the prosecution of sexual offence cases would be established. These would specify the particular approach needing to be taken to the decision to prosecute in sexual offence cases; however, it would not necessarily result in a change to the threshold for evidential sufficiency.
  • I/We support this proposal in the main, but would like to see a change in the threshold for evidential sufficiency given the nature of evidence in sexual violence cases. Currently there are cases which are not being taken to prosecution due to police perceptions that juries won’t convict. This effectively undermines the laws of this country. For example, this reasoning has been used in cases where young girls (12-14) have been raped in the absence of evidence of associated physical violence. With no accountability in place, the alleged offenders will feel free to continue their predatory behaviour on children.
  • Assessment of credibility in the current prosecution guidelines creates unfairness as the credibility test often goes against the victim/survivor due to impacts of the offending, which may include grooming by the offender of the survivor and the family. Such grooming can lead to the survivor presenting in a way that decreases perceptions of credibility and she/he may not be supported by family. In addition, just from the impacts of the abuse, victims/survivors may present in states of significant emotional distress with varying degrees of cohesiveness which might mean that they are assessed as not meeting a credibility test, while with specialist support, this perception might well change.
  • We believe that rather than take fewer cases to court due to the need for a reasonable chance of conviction, other aspects of the trial process need to be changed to increase the chance of conviction for those who are guilty.

2D Pre-trial evidence issues

Possible reform

  • A case dossier would be prepared by the prosecutor in consultation with the defence, through a case management process similar to that mandated by the Criminal Procedure Act 2011 (sections 87-89).  The dossier would include all of the evidence available at the time of its preparation, including evidential videos and other written statements of witnesses that the prosecution and defence intended to call.  Any defence evidence would be provided by defence counsel to the prosecutor for inclusion in the dossier.  This would not preclude other witnesses being called that were not in the case dossier, although there would be an expectation that witnesses that had been identified at the time of filing the case dossier would  be included in it.
    Ideally the judge at the pre-trial stage would be the same judge as at trial.
    The judge would decide the following matters before the trial:
  • whether the evidence was sufficient to go to trial;
  • which witnesses should be called;
  • whether any expert evidence was required, and if so which experts should be called; 
  • how evidence was to be given at trial, and the extent to which written statements would form the evidence; the complainant could apply to give evidence orally in court if he or she wished;
  • whether to direct further investigation if the judge considered that it was required.
  • This possible reform could apply to sexual offence cases only; to a specific range of offences; or to all cases.

I/We support this possible reform, if the proposed reform 3D is also implemented, that is, if judges will be required to be accredited to preside over sex crimes.

We support this on the grounds that:

  • It has the chance of shifting the focus away from who wins the argument, to what is the truth of this matter.
  • It is possible that it will speed up the trial process and prevent the oft-seen manoeuvres by the defence to have cases repeatedly adjourned. Such adjournments have a high emotional cost for the victim/survivor, and high financial costs for victims/survivors and others involved.

2E Pre-trial appearance of accused

Possible reform

  • Unless a hearing potentially required the input of the accused, the issue would be resolved by the judge and counsel without a formal court hearing.  As a result, the only purposes for which formal court hearings would be held would be as follows:
    • for the entry of a plea after (and not before) legal representation was arranged;
    • for the purposes of the case review/callover stage, which would occur only if the defendant’s appearance was necessary to resolve the issue at hand;
    • for the purposes of pre-recording of evidence before trial, if any;
    • for trial;
    • for sentence;
    • whenever there was an application that the defendant be remanded in custody.
  • This possible reform could apply to sexual offence cases only; to a specific range of offences; or to all cases.

I/We support this possible reform, but would like to see measures in place that keep the defence lawyer’s work transparent to the defendant.

  • We support the reform on the grounds that it is critical for the complainant to have a more streamlined process where delays are minimised. Continued delays create on-going anxiety as complainants wonder what is going to come of “this hearing”. For many survivors of sexual violence, exposure to on-going delays is re-traumatising and re-victimising. Some survivors face three or more adjournments. With the prospect of a trial to get through, many people put their lives “on hold”. The psychological costs of repeated preparation and disappointment are high. It is unreasonable to expect victims/survivors to go through this roller coaster.
  • However, we would not like to see implementation of this reform undermine a defendant’s right to assess the quality of defence he/she is getting.

Section Three: Characteristics of the trial court

3A: Who should determine the verdict?

Possible reform

  • The facts in a trial would be decided either by a judge sitting alone or by a judge and two jurors.  The jurors would receive a copy of the case dossier prior to trial so that they as well as the judge were familiar with the evidence. The judge and jurors would deliberate together as a joint panel.
    There are three different options for using a judge and two jurors to decide the facts in a trial:
    1.      Sexual offences only;
    2.      A specific range of offences thought to be particularly problematic;
    3.      All cases currently able to be tried by jury.

I/We support the proposed reform to have a trial decided by a judge and two jurors who are specially trained in sexual violence dynamics and have experience in sexual offence trials.

  • Most of the general public don’t imagine that people would do such heinous things to other human beings including sexual offending by grown adults (parents/uncles/siblings/priests/teachers/etc) on children. This is understandable when we live in the world where we want to believe the best about our fellow man/woman. It may be until you hear directly from those who have experienced sexual violence that you come to understand what some people really do to others. The need to have specialist staff working at all levels of supporting sexual violence is important, and this includes judges and jury. We need to ensure they have specialist knowledge and training and are not under the spell of the myths and prejudices widely held in the general population.
  • A judge alone as decision maker can feel risky for some complainants as this could replicate for many an aspect of childhood sexual abuse – the feeling that an older person, most likely male, has complete control over you.
  • The possible reform would allow the opportunity to deliberately bring culturally appropriate knowledge to the table. In particular, given the number of Maori who are held accountable in our courts, it would allow proactive selection of Maori jurors to enable Maori defendants and complainants to feel that their world (ie the context for the abuse or assault) would have a chance of being understood.

3B: Verdict

Possible reform

  • The judge and jurors if present would give written reasons for the verdict, reflecting the views of the majority about the facts.
  • In the event of a conflict between the judge and either or both of the jurors on a decision about a fact, this would be noted in written reasons. However, they would all need to be satisfied beyond reasonable doubt as to the verdict; there would be no majority verdicts.
  • The view of the judge would prevail on matters of law.
  • This possible reform could apply to sexual offence cases only; to a specific range of offences; or to all cases.

I/We support the proposed reform on the following grounds:

  • Transparency of reasoning increases the chance that a complainant will be able to understand the verdict and integrate that into their life. Currently, a not guilty verdict can leave a complainant making the assumption that it was something they had done that caused the jury to “disbelieve” them. This can be particularly difficult to shake as it can sit alongside the self-blame that many victims/survivors already struggle with.

3C: Sentencing

Possible reform

  • In those cases being tried by a judge and two jurors, the judge and jury would need to reach a majority view about the factual basis for the offending on which sentencing should proceed. If facts relevant to sentencing had not been determined in reaching the verdict, the judge would ensure that those decisions are reached at the end of the trial. The judge would then impose the sentence using the current process. 
  • This possible reform could apply to sexual offence cases only; to a specific range of offences; or to all cases.

I/We support the proposed reform for sexual offence cases on the following grounds:

  • If the judge and jurors are involved in establishing the facts of the case it is logical that this same basis is used for sentencing.
  • The arguments the Commission makes for judge alone determining actual sentence seem logical.

We hope that the Victim Impact statement would remain as a contributor to the sentencing decision.

3D: Specialist Judges

Possible reform

  • Specialist judges would sit on sexual offence cases.  There would be a specialist training programme that judges would elect to participate in before they were able to preside over such cases. 
  • After completion of the initial training, judges would be required to undergo regular ongoing training to ensure that they were up-to-date with recent developments.
  • This possible reform would apply to sexual offence cases only.

I/We support the proposed reform, preferring a system of warrants, on the following grounds:

  • Specialist knowledge at all levels of dealing with sexual violence survivor/victims is important due to the high potential for retraumatisation of survivors, the high levels of grooming often involved in the offense – including the skill with which many offenders deny the offence and falsely convince others of their innocence, and the widespread nature of inaccurate beliefs about sexual violence in the non-trained population.
  • Justice is more likely to be served by those judges who are aware of what creates a safe space for survivors to feel comfortable enough to share their most intimate stories, to feel respected and listened to and included in the process. Informed judges are able to support survivors to feel at ease in the court room by acknowledging how hard it is to come to court and supporting appropriate breaks when they have become overwhelmed and need a break from giving evidence. Conversely, insensitive or inappropriate remarks from a judge to a survivor of sexual violence can result in a significant emotional wounding and set back in their healing journey.
  • Judges have significant amounts of power over the process of justice in this area in which the existence of corroborative evidence is often scant, so it is essential that they are trained to use well what is available.
  • If the system of warrants is too restrictive in provincial areas, we would at least like to see a system of on-going training accompanied by a system of supervision and review conducted by senior judges who do hold a warrant.

3E: Accredited counsel for sexual offence cases

Possible reform

  • Both prosecution and defence counsel would be required to be accredited before they could act on sexual offence cases.  Gaining accreditation would involve undergoing specialist training.  Further ongoing training would be required for counsel to remain accredited. For the purposes of transparency and accountability, guidelines would set out the standards against which accreditation would be judged and obligations applying to accredited counsel.
  • This possible reform would apply to sexual offence cases only.

I/We support the proposed reform, if accompanied by a charter of “good conduct”.

  • Prosecution counsel who are experienced in sexual violence cases seem to do a better job, that is, assist in protecting the complainant from overwhelming retraumatisation through the court process, and achieve more guilty verdicts.
  • Defence counsel who are experienced in sexual violence cases also appear to do a “better job” for their clients, that is, they seem to use any means at their disposal to challenge the credibility of the complainant in the interests of securing an acquittal. This means that training defence counsel poses a risk – that they could learn how to further exploit the vulnerability of the complainant.
  • For this reason it is essential that any training be accompanied by a charter of good behaviour whereby a person violating the standards could lose their accreditation for doing the work. The stated aim of the Charter of Advocacy in Victoria, Australia has good intent – “to promote a culture that is sensitive and respectful of the experiences of victims without compromising a defendant’s right to a fair trial”.

Section Four: Trial Procedure

4A: How is evidence presented and who is in control of the process

Possible reform

  • The judge would be in control of the process during the trial and would be largely responsible for the way in which the evidence was given.  The parties would have a more limited role. 
  • On this model, the judge would decide the order in which witnesses gave evidence.  He or she would question witnesses first.  Parties would only ask questions of a witness after the judge had finished questioning.
  • The style of questioning engaged in by both judges and counsel would be substantially different from the style to which judges or lawyers in New Zealand have been accustomed. Significant training would therefore be required to ensure that evidence was elicited in the most effective way.
  • The witness’ statement in the case dossier would form their evidence but the witness would still be required to answer questions by the judge. However, evidence would be given in more of a narrative than a question-and-answer form, thus enabling witnesses to present their account of events in a more natural and conversational way (see Admissibility of evidence).
  • This possible reform could apply to sexual offence cases only; to a specific range of offences; or to all cases.

I/We support this possible reform as the current adversarial system comes down to who wins an argument rather than what the truth of the matter might be.

  • We consider this to be the most important reform among this package of possible reforms. Current forms of cross-examination are the most difficult part of the trial process for the complainant, being usually disrespectful and often retraumatising. They are also geared to obfuscate rather than establish the truth.
  • We would hope that this reform would also allow for more open ended questions to complainants. One of the current difficulties is that the requirement on witnesses to just directly answer the question that defence counsel has put, regardless of how obfuscating that question is, leaves them sometimes feeling frustrated, unheard and that they have been forced to contribute to what feels like their own demise.
  • This change to a judge-led process would be likely to precipitate other changes in sex crime trials. Currently, the appeal of these (and probably other trials) for trial lawyers seems in large part to be the chance to be a clever orator. This proposed reform might initially see a mass departure of the usual players when this chance was no longer available with a judge-led trial. This would clear the way for lawyers with other motivations and skill sets to take their place, maybe those driven primarily by a desire to see real justice done.

4B: Evidence by the defendant

Possible reform

  • The defendant would give evidence first, unless the judge decided otherwise.  The defendant would be subject to questions by the judge, but would not be obliged to respond to questions.  The defendant could respond to questions, if he or she chose to do so, by speaking personally or through his or her lawyer.
  • The defendant would be under an obligation to submit to questions whether or not he or she had provided a statement to the Court in the case dossier.
  • This possible reform could apply to sexual offence cases only; to a specific range of offences; or to all cases.

I/We support this possible reform, not only to redress the sense for the complainant that she is the one on trial, but to assist in the search for truth.

  • We would like to encourage a process where defendants answer questions personally rather than through a lawyer as bringing the voices of the complainant and defendant directly into the trial process potentially supports more genuine process. If lawyers are speaking on behalf of witnesses it increases the risk of the message being obscured from its original meaning. This speaks to the heart of one of the issues for us – should a person’s defence be able to be based on the crafting of any false story, or should a defence need to be based on what actually happened?

4C: Admissibility of evidence

Possible reform

  • If the fact-finder were to be changed to judge alone or to a judge sitting with two lay jurors, many rules of evidence could be dispensed with. Relevant evidence, including the defendant’s criminal history, would generally be admissible, with its weight being determined by the fact-finder. 
  • Rules requiring evidence to be relevant and avoid unnecessary repetition would still be required.  So too would rules about the complainant’s sexual history, because of the impact on the complainant of the admission of such evidence.
  • This possible reform could apply to sexual offence cases only; to a specific range of offences; or to all cases.

I/We support this possible reform on the grounds that decisions about guilt or innocence of sex crimes are significant for many people, so the more fully informed that they are, the more our communities are served.

  • This is in contradiction to the established view that the only person for whom the verdict really matters is the defendant, so all rules and procedures go to protecting the defendant. The psychological impact of sex crimes is so high, that the verdict has a significant impact on the complainant’s well-being, both in terms of feeling safe to be in the world in some cases, but also in having a sense of justice having been done in all cases. In addition, in some kinds of sex crime, risks of recidivism are extremely high, so a guilty verdict can protect many other potential victims from experiences of such harm that the reality can be that their lives might be forever changed. For example, many women would not have been attacked by Malcolm Rewa if he had been incarcerated following earlier charges.
  • We would support retention of the rules around non-disclosure of the complainant’s sexual history.

4D: Evidence of vulnerable witnesses

Possible reform

  • Cases involving vulnerable witnesses should be fast-tracked wherever this can be achieved, so that the trial occurs as quickly as possible. Where fast-tracking is not possible, pre-recording of evidence (including cross-examination) ought to be considered.
  • An amendment should be made to the definition of “communication assistance” in section 80 of the Evidence Act in order to allow for assistance in the process of answering questions for a wider group than just witnesses with a “communication disability”. This would allow for an incremental and careful approach to the introduction of intermediaries, who could assist with the phrasing of questions in an appropriate way. Their primary initial role would be to assist with communication and questioning issues rather than actually question witnesses.
  • This possible reform could apply to sexual offence cases only; to a specific range of offences; or to all cases.

I/We support this possible reform, as it is essential that the delays in the system and the nature of questioning are improved.

  • In our view, the current system renders all witnesses vulnerable and requires the highest level of protection against the process. Child witnesses are among the most vulnerable. It is disturbing to watch a child or young person give evidence a number of years after an event, and even more disturbing to watch the way that development changes can be exploited by defense counsel, for example, a child using different language than that which they used soon after the disclosure of the abuse.
  • The child’s wellbeing should be considered to be paramount. Lodging their evidence as soon as possible is a priority. It is unfair to expect a child to have a clear recollection of something that happened in a prior developmental stage. It is also unfair to have the trial process hanging over their heads for a long period of time.
  • Because most complainants are made vulnerable by the current processes, we would like to see an interpreter-like model for the posing of questions for all complainants if other reforms in this proposal are not implemented. However, if specialisation is required, a judge-led process implemented, and a “good behaviour” requirement imposed on counsel, it may be that communication assistance could be required only for those who are young or vulnerable for some other reason such as mental health issues.

4E: Role of the complainant

Possible reform

  • A victim of sexual offending would have an Independent Sexual Violence Advisor (ISVA) allocated to them from the first contact with the Police or another agency, based on the model in the United Kingdom.  The ISVA would provide support, advice and assistance for the victim until their complaint is resolved.  The ISVA would liaise with the Officer in Charge of the case and the prosecutor during any investigation and prosecution.
  • The ISVA would have the necessary expertise to inform a complainant, where relevant, about issues such as name suppression, the trial process, the stages of the criminal justice process, the role of the prosecutor, the complainant’s ability to have a support person (at trial, when giving evidence, or during pre-trial interview), the role of the complainant as a witness, what to expect from cross-examination and general witness preparation, and other applicable rules of evidence, including the availability of alternative ways of giving evidence.
  • This possible reform would apply to sexual offence cases only.

I/We support the proposed reform, but would also like to see changes in the supposed need for “neutrality” of the crown prosecutor if the complainant is not to have their own legal representation available to represent their interests in questions the judge decides re privacy, support and admissibility of evidence.

  • For the proposed reform to work, we submit that the role of the ISVA must be truly “independent”, hence not an employee of the court or other government agency including SAATS. This is the role of specialist sexual violence support agencies such as Auckland Sexual Abuse Help, Wellington Help and rape crisis centres nationally, though such agencies in many cases are not currently able to provide the fulsomeness of the role due to funding constraints.
  • The independence of the role is crucial to enable complainants to have their choices be fully informed by others whose task is solely to work for them, that is, who will have no other group’s agenda to meet. It also allows for an emotionally safe environment for much of the work as meetings can be held at the community agency.
  • It is important that the role of the ISVA is not just seen as information giving. Equally important, if not more important, is the capacity and skill to provide emotional and psychological support through the process. This needs to be included as a key task of the job description. Survivors of sexual violence commonly experience PTSD, anxiety, and are significantly triggered back to the sexual violence. In giving their statement to the police they are asked to go back and relive what occurred and tell their story. This is great for collecting a very good account of the events but takes an emotional toll on survivors. The challenge is for the survivor to remain emotionally and psychologically safe in watching their EVI in pre-trial preparation and in giving evidence in court. Many survivors might regress and start watching from the point of view of being back in time. This is not safe and requires specialist knowledge and skill to support them to watch it in their adult space and to process the emotions that emerge while doing so. This is particularly the case for adult survivors who have reported childhood sexual abuse.
  • Currently there can be a number of judge decisions which impact directly on the complainant. If she/he is not to have independent legal representation on her behalf in these decisions, then the crown prosecutor must step forward to encompass the role of looking out for her interests. We do not understand the current restraints on this which seems to be a perception that the crown prosecutor must be seen to be neutral. Surely the holders of neutrality should be the judge and the fact finders. On the contrary, we believe that the prosecution can do a better job when there is good relationship with the complainant – an understanding of her version of what happened and her needs in the process.

4F: Child protection orders

Possible reform

  • Whichever court was responsible for the risk assessment, if it was determined on the balance of probabilities that the defendant had offended and either the victim in this case or other children were still at risk, the court would have the ability to make child protection orders in relation to the accused. This would be a civil order that would be time-limited, subject to appeal and regular review. Such orders would not involve detention but might cover treatment and non-association with children.
  • Referral for assessment of risk would be limited to cases where there had been a criminal prosecution (whether that led to an acquittal or a conviction), so a civil order would be available only in those cases. There might be an argument that given that the order is based on the balance of probabilities, it should be available on application whether or not there had been a prosecution.
  • This possible reform would apply to sexual offence cases only.

I/We support this possible reform, though would like to see it taken further as outlined below.

  • Following acquittal, it can be difficult to keep children safe. Sometimes CYF will take no further action due to the acquittal, and the Family Court may not be involved or may not take action to protect the child. In some situations, lack of information can mean that an order is made for a child to live in the home of the offender.
  • This is not acceptable if we as a country truly want to prioritise protection of vulnerable children.
  • Our current system makes little sense if child protection is actually the goal. A child discloses that someone has caused them harm – children don’t disclose to get “justice”, they disclose to get safe. So what we do is put them into a system that is designed to deal with adults making allegations about each other, and which requires a high standard of proof which in most cases of sexual abuse is just not available. This system does not get most children safe from sexual abuse, so it is an ineffective way to approach the problem. It inherently protects the rights of adults over the rights of children. We would suggest instead a system whereby:
    • A child’s disclosure of abuse is assessed for credibility – preferably that day but within 48hrs if the person the child says has caused harm does not have immediate access to the child.
    • If deemed to be credible, a protection order is put in place, restricting access to supervised access only or denying access fully, depending on the child’s needs for emotional safety and connection with the offender (eg if close relative with strong attachment relationship such as father).
    • The protection order would be reviewed at regular intervals e.g. 6 months, based on the child’s needs at that time, and assessment of the person the child says has caused the harm. Engaging in treatment would be a desirable response to the protection order. Safety measures would be put in place if/when a protection order was removed.
    • If not deemed credible, safety measures are still put in place, and the family is required to engage in therapy, including child psychotherapy, to establish and remedy the child’s need that led to the disclosure, whether or not it was accurate.

Section Five: Specialist sexual violence court – post-guilty plea

Possible reform

  • Where there is a complaint to the Police and an offender pleads guilty to a sexual offence, there would be an option of referral to a specialist sexual violence court.
    The key features of the proposed specialist court and its process would be:
  • A guilty plea, informed victim agreement, and the suitability of the offender for participation in some form of intervention would be the governing criteria for whether the case was dealt with in the specialist court;
  • Following entry of a guilty plea in the criminal court, the court would refer cases that appeared to meet the governing criteria to the specialist court for consideration;
  • The referral would be assisted by a victim impact statement that would indicate the victim’s views regarding the impact of the offending on them, but might also include reasons why they support referral to the specialist court in this particular case;
  • Once referred to the specialist court, the judge would remand for a full assessment by a team of specialists to ensure suitability of the case for the specialist court process;
  • Any cases not meeting the criteria or otherwise being found unsuitable would progress to sentencing in the usual way;
  • After assessment, a report addressing the suitability of the case for the specialist court process and the development of an intervention plan would be delivered to the court; the intervention plan would comprise a tailored set of actions for the individual to complete, to enable  them to take responsibility for their behaviour and address its causes, and could include treatment, education, reparations, apologies or other actions as appropriate to the case;
  • If the specialist court judge was satisfied on the basis of the specialist report that the case was suitable for the specialist court process, the offender would be offered entry into the court and asked to commit to the proposed intervention plan;
  • Supervision of the intervention would be the responsibility of the specialist team who would have the ability to bring the case back before the court at any time should concerns about the offender’s compliance with the plan arise;
  • The specialist court judge would also have discretion to seek periodic reports on the offender’s progress with the intervention plan and bring the offender back before the court;
  • If the offender was declined entry to or refused to commit to the intervention (or entered but later withdrew his agreement to participate), the case would proceed to sentencing in the usual manner;
  • All counsel appearing in the court would be required to undergo specialist training;
  • At the conclusion of the intervention, the offender would receive a sentence that would reflect his participation in and progress after the intervention, which may or may not involve imprisonment.

I/We support this possible reform on the following grounds:

  • It is in line with what many survivors want – with intra-familial offending survivors often want treatment rather than, or in addition to, punishment.
  • This is therefore likely to increase reporting rates, which will ultimately lead to a safer society.
  • We know that treatment can reduce recidivism so it is both a humane response to those who have offended, and a better outcome for society as rates of sexual offending will drop.
  • It will allow early treatment. This offers the greatest chance of success as treatment is most effective when people are feeling remorse. This is most likely to occur near to the time of the emotional process of being held accountable, rather than some years down the track when some of those who have been incarcerated have come to feel resentful at the way that they have been treated.

We think that it is essential that the following aspects of the proposal and commentary are adhered to:

  • That the governing criteria remain as stated in the proposal – taking responsibility through making a guilty plea is essential (though not unproblematic as in a significant number of cases defendants will plead guilty to some lesser charges but not to charges of sexual violation), as is informed victim agreement, and an assessment of suitability for treatment of the offender.
  • That a pre-sentence model is used for the court.
  • That a multi-disciplinary approach involving specialists in sexual violence is necessary for reporting to the court on progress
  • That there are robust mechanisms to ensure that victims are kept informed of progress.
  • That where children are involved, there are robust protocols for ensuring consent is obtained in a manner that is appropriate for their level of understanding and their perspectives on their needs.

Possible risks associated with this possible reform:

  • Many of the guilty pleas which are entered for sexual offences follow what is commonly known as “plea bargaining”, in that the defendant pleads guilty to a lesser charge than that which was originally made. It seems that this is agreed to as it can spare the victim/survivor a difficult trial with no guaranteed outcome, but the cost is that the original harm done to the victim/survivor is minimised and the consequences for the offender are out of line with the nature of the sexual violence which was perpetrated. This currently has risks for those who are able to be victimised in the future because of those reduced consequences. This issue of the relationship between the charges and the harm done would need to be taken into account in assessment for the specialist court.

Section Six: Alternative processes for sexual offence cases

Possible reforms

  • An alternative process outside of the criminal justice system would resolve certain sexual offence cases.

I/we fully support this possible reform, both for the possibilities for Maori and the possibilities of making restorative justice available to a much wider population than can currently access such a process.

  • The value in Maori being able to choose a justice process which is borne out of te ao Maori cannot be overstated. This could amount to Tauiwi getting out of the way, so that whanau, hapu and iwi can take care of their own.
  • Specialist restorative justice for sexual violence is provided in Auckland by Project Restore, a collaboration between Restorative Justice Auckland and some of Auckland’s specialist sexual assault/abuse support or treatment services. This programme offers victims/survivors a way to remain in control of the justice process and stay in direct relationship with the person who has caused them harm.
  • Project Restore currently deals with cases that are referred by the community as well as the court. There is value in continuing with the option of restorative justice as a part of the criminal justice system, following a guilty plea. This could function as a part of the Specialist Sexual Violence Court.
  • Given the recidivist nature of some sexual offending, there would also be value in combining a community restorative justice process with some kind of process of police registration. This could allow the recording of the name of the person who allegedly caused harm and the nature of the alleged crime so that a full picture would be available if other victims/survivors were to come forward with regard to other incidents, either to the restorative justice provider or to the police.

The features of the possible reform process would be:

  • The victim would opt for an alternative process, either instead of a complaint to the Police or at the point of complaint to the Police, and the accused would have to agree to participate;

I/we support this possible reform with the following qualifications:

  • It is important that the accused agrees to participate and be informed that it is a voluntary process that they can opt out of at any point. It will be important to consider this issue carefully as if a person who caused harm is coerced into the process it may come at a cost of genuine participation.
  • If a person who allegedly caused harm opts out of a restorative justice process, it is important that the victim/survivor retains the choice to report to the police. However, people who have harmed another and have an investment in relationship with the person they harmed, are more likely to acknowledge their offending and genuinely participate in the process if they are not overtly threatened with a police process as the alternative.
  • The case would be assessed by specialist providers to determine whether it was suitable for an alternative resolution process or whether it was unsuitable, for example because the accused’s previous convictions indicated that he or she posed too great a risk to community safety.

I/we support this proposed reform with the following comments:

  • It is important that specialist providers are assessing cases for suitability. The specialists should be embedded in a specialist restorative justice provider group such as Project Restore that would work with the police and other government agencies to collect information and make assessments as to the appropriateness of offering a restorative justice process.
  • It is important that the victim/survivor’s wishes are sought in this process and a process is tailored to meet their needs. In most cases, the perpetrator of harm will not have participated in a treatment program and hence is not likely to be able to fully account for their offending. This is a risk, but many survivors understand this and are willing to proceed on the grounds of a step by step process.
  • Some survivors may want to continue with the process knowing the person who caused harm are not fully suitable due to their lack of awareness or ability to self-reflect and may not present as genuine or unable to fully account for their offending. It is important that the assessors are skilled at being able to work with both parties to assess and to provide a safe process for them in less than ideal conditions. The important task is for the specialists to be able to fully inform both the survivor and the person who caused harm of the possibilities and support a process that will meet their needs to repair the harm caused by the sexual behaviours.
  • One of the principles of Project Restore which keeps each tailored process as safe as possible, is that the process must be survivor-driven. This would be an important concept to retain in any alternative process, particularly if by participation the survivor loses the right for a later criminal process.
  • There will always be clear cases of violent sex offenders who will be less likely candidates for a restorative process and these cases can also be assessed by the specialist team provided they have access to all the relevant information from police, corrections, family, etc.
  • This assessment of suitability would be carried out in consultation with the police and other agencies where appropriate, such as the Child, Youth and Family Service, in order to properly assess the risk to community safety.

I/we support this proposed reform

  • It is important that any decision made is done so with all the relevant information disclosed to the specialist sexual violence agency such as Project Restore. This would include police, probation, corrections, CYFS, counsellors, mental health, any other relevant agency, and family/community.
  • The accused would need to accept that there had been a sexual encounter (although he may view its nature differently from the victim) and be willing to engage in an alternative resolution process. This willingness to engage would need to include agreement to participate in an appropriate intervention.

I/we mostly support this proposed reform

  • Project Restore has a requirement for those entering the RJ process to agree to be assessed for treatment and enter treatment if assessed as appropriate, alongside a higher standard of taking responsibility than this proposal – there must be an agreement that they have caused harm.
  • Without this agreement, the process can become more of a confrontation. While some confrontations can lead into effective restorative justice processes, others do not. The option of a criminal justice process would be essential in these situations or this could become a route for those who have caused harm to avoid any accountability.
  • Proceedings would be privileged, i.e. nothing the accused said in the course of the process could be used as evidence in any later criminal proceedings. However, information provided by the accused could be used to trigger further investigation by police, the outcome of which could be used if prosecution for that offence or any other offence ensued.

I/we agree with this possible reform

  • Restorative processes require good faith and good will by all participants.
  • Taking away the fear that whatever they say in the restorative process will be used against them in a court of law creates a safer environment for offenders to potentially take more full responsibility for the harm they have caused.
  • This would require a higher degree of collaboration with the police and the need for specialist knowledge of the legal process by the survivor/offender specialists.
  • The process would be tailored to the nature of the case, the wishes and needs of the victim, and the need to ensure victim safety.

I/we support this possible reform

  • These conditions are essential for the process to be emotionally and psychologically safe, given:
    • The significance of the impacts of sexual abuse/assault
    • The high levels of grooming of victims, families and communities that surround sexual offending
    • The shame and self-blame that most victims/survivors struggle with
    • The potential for retraumatisation through any engagement with a justice system and/or the person who caused them harm
  • Another aspect of ensuring victim safety is the availability to the victim/survivor of on-going counselling relationship to process the emotion that the RJ process brings up. When they approach RJ, many survivors think that they have dealt with all of their feelings about the abuse except for wanting an apology and reparation. However, this is rarely the case as direct engagement with family and a person who caused significant harm can trigger vulnerabilities of which the survivor was not even aware. Such counselling would need to be funded as a part of the process, as different to ACCs requirement for a psychiatric assessment to determine mental injury to qualify for partial funding of counselling.
  • The process would result in a set of agreed outcomes that might include a requirement for the accused to undergo treatment or education; if an agreed outcome were treatment, then a further assessment would be required to assess the suitability of the accused for participation in treatment.

I/we support the possible reform with the following additional recommendation.

  • If treatment is a pre-requisite of entering the RJ process, ideally an assessment could be carried out before the RJ conference and can then feed in as information at the RJ conference. This would create more clarity of outcomes at the conference stage.
  • That any agreements are followed through is essential, or the process risks causing further harm through replication of the breach of trust. Monitoring of this follow through would need to be fully accommodated in the system.
  • Currently, there is no treatment available in the community for those who sexually offend against adults. Such treatment would be essential for a restorative justice process to be effective.
  • There would be the ability for the case to be referred back to the criminal justice system if no agreed outcome could be achieved or an accused failed to participate in an acceptable way and to fulfill any undertakings he had made; protocols would be needed for what constituted acceptable participation.

I/We support the possible reform

  • This could work well for cases which were referred through the criminal justice system.
  • For community referrals directly to the restorative justice provider the decision for the next step would need to revert back to the survivor. This would be in light of the process of choosing not to enter the CJS initially. The survivor specialist would work with the survivor to explain the participation shortfalls and to support them in making a decision of what to do next.
  • It would be important to develop protocols on monitoring and consequences on non-fulfillment of agreements for both court and community referrals. This could be done in consultation with police, lawyers, survivor/offender/restorative justice agencies, along with input from survivors and offenders who have been through the process if they are willing to have input into this.
  • Before the accused fulfilled all undertakings agreed to through the process, there would be protocols for referral back to the criminal justice system where information emerged that made it unsuitable for the case to continue to be dealt with alternatively, such as additional offending;

I/we agree with the proposed reform

  • This would require ongoing collaboration between treatment agencies and restorative justice providers. Treatment providers such as SAFE Network have appropriate policies where there are disclosures of current offending.
  • If the agreement in the outcomes of the RJ Conference includes the survivor specialist representing the survivor in the treatment review process (which is offered by Project Restore), then they can inform the survivor of the reason the accused did not fulfill all undertakings and seek their views on the next step.
  • If the accused participated in good faith and fulfilled all undertakings, referral back to the criminal justice system would be precluded.

I/We mostly agree with the possible reform.

  • This would support the person who caused harm entering the process and continuing to participate in good faith.
  • An issue that must be considered is that once a person has crossed the boundary and sexually offended, the consequences last for a life time. Although they may feel they have “done the crime and done the time”, it must be acknowledged that their responsibility on a spiritual and emotional level lasts a life time. Understanding the fullness of the consequences of their behaviour would need to be a part of the treatment programme. This is particularly the case where adults offended while in a caregiving role , eg, step-fathers, fathers, uncles, grandfathers, teachers, mentors and coaches.
  • The significance of the impacts can also mean that it is a life-time journey for the victim/survivor. This can make it difficult for a RJ process to reach outcomes which are sufficient for her to feel satisfied and to resolve the psychological harm. Therefore, the RJ process needs to be as well done as possible, and not in any way be cursory as losing the right to use the CJS would then be problematic.
  • Preclusion from referral back to the CJS would not be appropriate where a confrontation did not result in a person taking responsibility for the harm caused, unless the victim/survivor also came to understand the event as the person alleged to have caused harm did. However, this outcome can also be complex if this shared understanding is a result of continued grooming. The Project Restore model guards against such grooming by the participation of the offender and survivor specialists in the conference itself.
  • A further difficulty with preclusion from referral back to the CJS arises from the fact that many victims/survivors want RJ for several reasons – they want the acknowledgement, apology and redress for themselves, but they want the treatment so that the person does not cause harm to anyone else. However, if the treatment failed and they were aware of harm having been caused to someone else during or after treatment, many would then see incarceration as the only way to protect others and want to use the CJS to achieve this. Ways to address this would include the aforementioned process of registration with police and allowing the survivor’s experiences of the alleged offender as similar fact evidence in any later trial that did eventuate.
  • One of the difficulties which would need to be accommodated in the development of alternative processes, is the way that many incidents of what is experienced as sexual assault do not make it to police or to court because of a discrepancy between the experience of the victim/survivor and the experience of the person alleged to have caused harm. It is not uncommon for a woman to have been raped, but the man involved to have merely had sex, both by his own experience and by the law. The law tells her that it is rape if she doesn’t consent and that she doesn’t need to say no to show she is not consenting, but the law tells him that he can make assumptions about what might be taken to mean consent. To address such situations in restorative justice processes requires skilled support and facilitation, along with participants who have the capacity to stay emotionally connected and really “hear” in spite of the pain they feel due to what they experienced or the discrepancy between what they are being accused of and what their self-image says they are.