Contents

Appendix C
Eligibility for entry into the alternative process

Introduction

1This appendix elaborates on some matters raised in Chapter 9 regarding eligibility for entry into the alternative process.

Victim eligibility criteriaTop

Consent and coercion

2A number of submitters expressed concern that care needs to be taken to ensure complainants are not pressured or coerced by others into participation in the alternative process. Risk factors may be when there is a significant age gap between the parties; where the perpetrator is a prominent member of society; where the complainant is young or in a heightened position of vulnerability, for example, due to dependence in some form; or where the parties are related or in an ongoing relationship. Particular care needs to be taken where the sexual violence forms part of a pattern of intimate partner or family violence (as there is the potential that the power and control dynamic may place a victim at greater risk of coercion and increased risk of physical danger).

3Pressure or coercion may even be well-meaning – for instance, family members or the Police may encourage participation in the alternative process, believing a criminal prosecution may be difficult or unlikely to be successful.

4As a part of considering statutory eligibility, the provider should assess whether the victim is truly consenting and obtain a victim’s written consent to participate in the alternative process.

Age restriction

5We have considered at what age it would be appropriate for young people to participate in the alternative process and whether, due to their relative immaturity and vulnerability, young people would need the consent of an adult to participate in an alternative process.

6There are potential issues with young people needing the consent of an adult:

(a) Family members may not consent to the young person participating if they do not believe the young person, if the family member is the perpetrator, or if family members are complicit in the offending.

(b) Conversely, a young person may wish to make a complaint to the Police but be pressured by family or others into the alternative process (for instance, in order to avoid a family member facing likely imprisonment through the criminal justice system).

(c) A young person may not have any key adult relationships outside of the family who would consent to their participation.

7In consultation, Rape Crisis was of the view that participation in the alternative process could be of great benefit to young teens, but it would depend on the young person’s level of maturity and development and the level of support available. Rape Crisis felt that a young person should only engage in the alternative process with the support of family or whānau. However, in their view, the consenting adult may not need to be from the immediate family member and could be from wider whānau or “surrogate” family and friends.779

8We therefore consider that participation in the alternative process may be particularly appropriate for young teens, where the victim and perpetrator are of a similar age and are learning to communicate about sexual boundaries and behaviour. Setting an actual age can be somewhat arbitrary, as children develop differently. Therefore, rather than setting a firm lower age, we recommend that victims of around the age of 12 and up to 16 years should be eligible to participate subject to the provider assessing the young person’s suitability to participate having regard to:

9The first of the above factors is drawn from the Gillick “mature minor” competency test – that children are individuals who grow in intelligence, competence and autonomy as they move towards adulthood and therefore a child has legal competence in making decisions, provided that they have sufficient understanding and intelligence to enable full understanding of what is proposed.780 Operational guidelines/good practice principles should also set out the sorts of things the providers should have regard to in making this assessment.
10We have further considered at which point young people should be able to make the decision to participate as if they were an adult. We note that there are varying ages set out in legislation for determining who is considered a child, and, above that age, an adult. The Care of Children Act 2004 defines a child as anyone less than 18 years,781 and in general, the consent of a child’s guardian in respect of important welfare decisions is required up to that age.782 However, a child aged 16 years or older can consent to or refuse to have a medical procedure,783 and a child of any age may consent to or refuse an abortion.784 The Children, Young Persons, and their Families Act 1989 (CYPF Act) defines a child as a person under the age of 14 and a young person as anyone over the age of 14 but under 17 years.785 Under section 134 of the Crimes Act 1961, sexual conduct with a young person under the age of 16 years is an offence.

11Although setting an age limit is somewhat arbitrary, for legal certainty and in light of the varying definitions highlighted above, we consider that it would be appropriate for the minimum age of eligibility to participate as an adult to be set at 16 years.

Perpetrator eligibility criteriaTop

Choice to participate

12Although there is more risk of a perpetrator coercing a victim into participation, the provider should still consider whether there may be pressure or coercion brought to bear on a perpetrator from family members or those in authority.

13In our view, to freely choose and consent to participation in the process, the perpetrator must fulfil the same conditions as described in the discussion on victim consent (see ​“Victim eligibility criteria”, above).

14The only separate point to note here is that the legal rights, implications of participation, and protocols, in respect of which the perpetrator needs to be advised, will be different for perpetrators than for victims. For instance, perpetrators will need to understand that a record of successful participation (if the process is successfully completed) may be disclosed in certain circumstances if they commit another act of sexual violence in the future.

Age restriction

15The considerations regarding the minimum age for a perpetrator to participate in the alternative process should be similar to those outlined above in respect of the victim, although it is also useful to consider the relevant provisions of the Crimes Act 1961 and the CYPF Act.786 Those pieces of legislation provide that children under 10 cannot be convicted of any offence,787 children of 10 years and over can be prosecuted in cases of murder and manslaughter,788 and children aged 12 and 13 years can be prosecuted in the Youth Court for serious and/or persistent offending (including sexual offending).789
16In light of these pieces of legislation and the earlier discussion regarding victims, we consider that 12 years as a lower age would appear to be appropriate for participation. However, in our view, a young person between the ages of 12 and 16 would need the consent of their guardian or adult nominee of their choice to participate in the alternative process.790 In coming to this view, we have taken into account the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, known as the “Beijing Rules”.791 These provide that any action taken without resorting to a formal trial needs to have the consent of the young person or his or her parents or guardian.792 This may bring risks, for example, family members may not consent if they do not believe the young person was the perpetrator. However, in order to ensure a fair process for perpetrators, we believe that adult consent is necessary.

17Although there will be different considerations for young people who are perpetrators to those who are victims, we believe it would still be appropriate for providers to carry out an assessment of perpetrators aged over 12 years and under 16 years to ensure they consent to participating and take responsibility for their offending, have the capacity and maturity to participate and have parental or adult consent and support.

18Based on the considerations noted in the section on victims, we consider that it is appropriate that the minimum age for perpetrator involvement in the alternative process without adult consent is 16 years.

ChildrenTop

19There is some attraction in the idea that parents may go through the alternative process on behalf of a child, as this would avoid the need for a child to go through a difficult court experience yet could hold the perpetrator accountable. Under the Victims’ Rights Act 2002, a parent or guardian of a child who has suffered sexual violence is viewed as a victim of the offending.793

20This raises the question of whether it is appropriate for a parent to take on the “justice needs” of a child. A number of submitters and others we consulted with were concerned that an alternative justice process should not preclude a child being able to go through the process on their own account once old enough to do so, and as noted in Chapter 9, a parent going through the alternative process of behalf of a child would also prevent the child being able to have their own justice needs met through the criminal justice system.

21We have therefore considered whether there may be a way for parents to commence the alternative process when a child is young but defer the completion until the child is old enough to go through the process on their own behalf. However, suspending the process like this would delay closure and would be problematic to administer and potentially unfair on perpetrators.

22Set alongside these concerns is the strong public interest in ensuring that someone who has sexually offended against children should not have the opportunity to offend against others. If the alternative process was not available in respect of current offending against children, this would be an added safeguard (along with the risk assessment process) to ensure that fewer of those who may pose a community safety risk in respect of children would be able to participate in the process. It would not completely rule out those who have offended against children, as an adult victim who had experienced sexual violence as a child at the hands of a perpetrator would be eligible to participate in the process.

23We believe that it is preferable at this stage to exclude parents or guardians from participating, on behalf of children, in the alternative process.

779Meeting between Rape Crisis and the Law Commission regarding alternative trial processes project (19 June 2015).
780Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL) at 188. See Chantelle Murley “Does the Gillick Competency Test Apply in New Zealand, Given the Special Nature of Sexual Health Care Services?” (2013) 1 Public Interest Law Journal of New Zealand 92.
781Care of Children Act 2004, s 8.
782However, the court cannot make an order regarding the care arrangements in respect of a child over the age of 16.
783Care of Children Act 2004, s 36.
784Care of Children Act 2004, s 38.
785Children, Young Persons, and Their Families Act 1989, s 2(1).
786Of course, the definition of “victim” under the Victims’ Rights Act 2002 would not apply.
787Crimes Act 1961, s 21.
788Children, Young Persons, and Their Families Act 1989, s 272.
789Children, Young Persons, and Their Families Act 1989, s 272(1)(b) and (c).
790Similar to the concept of a “nominated person” in the Children, Young Persons, and Their Families Act 1989, s 222.
791Nessa Lynch Youth Justice in New Zealand (Thomson Reuters, Wellington, 2012) at 38.
792United Nations Standard Minimum Rules for the Administration of Juvenile Justice A/RES/40/33 (1985), r 11.3.
793Victims’ Rights Act 2002, s 4, definition of “victim”, para (a)(iii).