Contents

Chapter 1
Scope, approach, and context of this review

Our approach

1.35In this part we set out the issues that are examined in this Report and our approach to addressing those issues.

1.36We begin by looking at the processes that occur at trial and pre-trial and considering whether those could be improved. We do not look at Police investigation and charging decisions, although as noted in Chapter 3, this area may require further analysis.

1.37We have not limited our approach to an examination of the trial process alone. The justice needs of sexual violence victims, as we go on to discuss in Part C, have been describe as “diametrically opposed” to what is required of those victims when they enter the trial process.36 Victims also want more choice about the options available for how they seek justice. Where possible and appropriate, these alternatives should be available to them. Thus, we have looked at the potential for alternatives to the trial process that might better align with victims’ justice needs.

1.38Finally in this Report we also consider whether more can be done to support victims so that they are in the best position possible to be able to engage with the criminal justice system.

Other considerations and issues relating to scope

1.39In writing this Report, we have also given thought to a number of other considerations and “scope” issues.

Sexual violence and family violence

1.40Because sexual violence often occurs in a family or domestic context, some forms of sexual violence have a necessary overlap with family violence. Family violence may be defined to include a broad range of controlling behaviours, commonly of a physical, sexual and psychological nature, which occurs within a variety of close interpersonal relationships.37 In certain contexts we also refer to intimate partner violence, which is a subset of family violence.
1.41Family violence and how New Zealand should respond to it is the subject of an ongoing government review.38 The Law Commission has two references underway that address forms of family violence.39 The problem of family violence and how the legal system should respond to it is not the subject of this Report. We also note that family violence exhibits specific features of power and coercive control that do not appear in all contexts of sexual violence. Although there is crossover between the two, because of the substantial differences between them, they need to continue to be seen as distinct issues, and so we would caution against a wholesale transplanting of the reforms here into the family violence area.40

Children and other vulnerable victims

1.42This Report focuses on victims of sexual violence, as a distinct group of complainants of a particular kind of criminal offending. There are many other distinct groups of victims who can be singled out. These include children, victims with disabilities or special needs, and other victims who, because of their circumstances or features unique to them, may be classed as “vulnerable”.

1.43We note the focus put on improving the criminal justice system for child complainants in the past five years or so and the various policy and law reforms that have resulted.41 Our report is not focused on child complainants, however we would note that most of the child complainants in the criminal justice system are complainants in cases of alleged sexual violence. Therefore, to the extent that the system is improved for victims of sexual violence, those improvements may be expected to bring benefits for child complainants in the criminal justice system. We think that this strengthens the case for focusing on sexual violence. While we do not focus on child complainants specifically, we are fully supportive of a continued focus being put on improving the criminal justice response to children.

Sexual violence can affect anyone

1.44In this Report, we have chosen not to take a “gendered” approach towards sexual violence. A gendered approach would focus on sexual violence as a form of criminal offending that is predominantly perpetrated by men against women.42 We do not contest the elements of power and control involved in sexual violence, and we recognise the need to look carefully at the intersections between sexual violence, family violence and other forms of criminal offending. However, we do not wish to overlook the incidence or effect of sexual violence in same-sex relationships, of sexual violence against those who identify as transgender, and of all other victims who do not fit the gendered model of sexual violence. For the same reason, we do not use gendered pronouns throughout this Report.

Use of the terms “victim” and “perpetrator” in this Report

1.45We have elected to use the term “victim” in this Report to refer to people who have been through an experience of sexual violence. (Where relevant, when referring to a victim who is appearing at trial, we use the term “complainant” or “complainant witness”).

1.46We received submissions and heard from people in consultation objecting to the use of the word “victim”. There are some in the sexual violence sector who find the term “victim” potentially disempowering and who prefer to use the word “survivor” or “victim/survivor”. By our use of the term “victim”, we do not wish to disempower those who experience sexual violence, each of whom will respond to and perceive an act of sexual violence differently. Some people would also choose not to use the term sexual “violence” because, while they might view the conduct in question as an incursion of their most intimate physical boundaries, they might not label it an act of violence. The terminology is important, and we acknowledge these views.

1.47Contrastingly, some have objected to the use of the word “victim” being applied to a person who makes a complaint about criminal offending unless, and until, that criminal offending has been established in a criminal trial resulting in a guilty plea or verdict. We use the term “victim” in the interests of simplicity. We note the widespread use of the term “victim” in policy and legislation (among other things, the Victims’ Rights Act 2002) often in reference to points in time that occur before a criminal trial. Our use of the term is not to be taken as a suggestion that an allegation of sexual violence may be treated as proved before it has been properly tested at trial and a guilty plea or verdict entered.

1.48We use the term “perpetrator” to refer to a person who has, or is claimed to have, perpetrated an act of sexual violence upon another. We use that term for the purpose of simplicity. The term “defendant” will not always fit the context, because sometimes we refer to a person claimed to have committed an act of sexual violence who is not being prosecuted in court. Our use of the term “perpetrator” is not to imply that the person in question is or has been found guilty of an offence of sexual violence.

36Judith Herman “Justice from the Victim’s Perspective” (2005) 11 Violence against Women 571 at 574.
37Family Violence Death Review Committee Fourth Annual Report: January 2013 to December 2013 (Family Violence Death Review Committee 2014) at 13. Defined in full as:
a broad range of controlling behaviours, commonly of a physical, sexual and/or psychological nature, which typically involve fear, intimidation and emotional deprivation. It occurs within a variety of close interpersonal relationships, such as between partners, parents and children, siblings and in other relationships where significant others are not part of the physical household but are part of the family and/or are fulfilling the function of family. Common forms include:
  • violence among adult partners
  • abuse/neglect of children by an adult
  • abuse/neglect of older people aged approximately 65 years and over by a person with whom they have a relationship of trust
  • violence perpetrated by a child against their parent
  • violence among siblings.
38Ministry of Justice Strengthening New Zealand’s Legislative Response to Family Violence: A public discussion document (2015).
39See “Victims of family violence who commit homicide” and “Creation of a separate crime of non-fatal strangulation” Law Commission <www.lawcom.govt.nz>
40Ministry of Social Development Report on submissions to the Inquiry into the funding of specialist sexual violence social services (2014) at 18.
41See, among others, Ministry of Justice Alternative pre-trial and trial processes for child witnesses in New Zealand's criminal justice system (2011); Cabinet Domestic Policy Committee Minute of Decision “Child Witnesses in the Criminal Courts: Proposed Reforms” (29 June 2011) DOM Min (11) 10/1 and Paper to the Cabinet Social Policy Committee “Amendments to the Evidence Act 2006” (12 November 2013).
42Nicola Gavey Just Sex? The Cultural Scaffolding of Rape (Routledge, London, 2005); L Kelly Promising Practices Addressing Sexual Violence (United Nations Division for the Advancement of Women, Vienna, 2005); and D Lievore Prosecutorial Decisions in Adult Sexual Assault Cases: an Australian study (Office of the Status of Women, Canberra, 2004) all as cited in Mossman and others, above n 6, at 6.