Improving accountability for sexual offences
Our calls for change to enable greater accountability for sexual offences comes as a result of the low rates of conviction or other consequence that we currently have in New Zealand. In its review in 2012, even the Law Commission concluded that “the traditional criminal justice process is limited in its ability to deliver justice” for sexual violence.
1. Revisit the 2012 Law Commission Issues Paper ‘Alternative pre-trial and trial processes: possible reforms’
The Law Commission was asked to undertake a “high-level review of pre-trial and trial processes in criminal cases. In particular, it should consider whether the adversary framework within which those processes operate should be modified or fundamentally changed in order to improve the system’s fairness, effectiveness and efficiency. The Commission should include within its review, an examination of inquisitorial models and consider whether all or any part of such models would be suitable for incorporation into the New Zealand system.” The result was the 2012 paper named above.
The paper called for submissions. These were summarised, but the project was halted by then Minister of Justice Judith Collins. In the same role, Amy Adams revisited the issue in 2015, but the resulting report had a lesser scope and did not progress all of the possible reforms outlined in the issues paper. This was in spite of submissions to that paper having shown strong support for a number of the options.
Submissions contained very strong support for:
- Child protection orders
- Special sexual violence court (post guilty plea), that is, a treatment court
- Alternative process for sexual offence cases, a judge led/inquisitorial style process.
And strong support for:
- Written reasons for verdict
- Jury involvement with sentencing
- Specialist judges
- Accredited counsel (lawyers)
- Independent sexual violence advisors
While the Law Commission Report in 2015 made some great recommendations, including training for judges and defence counsel, increased support for victims, and further research into the establishment of a treatment court, it did not progress the other matters which received strong or very strong support in the submissions process. The changes advocated do not fundamentally change the nature of the trial process, which we suggest is warranted given the very low rate of accountability that we see.
There are also several other changes in law which could facilitate increased accountability, both in culture and law:
2. Revised definition of consent.
The definition of consent needs revision to include that it must be freely given. Consent is at the heart of sexual crimes so the more clarity that the law contains, the better. It needs to be clear that no form of coercion is acceptable.
3. Review “reasonable belief” in consent.
The use of “reasonable belief” creates a highway for rape myth to enter the process. We need to support the idea that consent needs to be sought, rather than assumed. This might mean moving to some degree of evidentiary burden for the defendant. While there has been strong resistance to this as undermining the basis of our criminal justice system, such shifts in evidentiary burden have been made both in other countries which operate on similar legal principles to NZ, and in NZ in relation to other crimes.
We suggest that the degree of difficulty posed by aspects of the law and the trial system is so great, that anything less than fundamental change will not make a substantive difference to achieving accountability and justice following sexual offences.