Contents

Chapter 1
Scope, approach, and context of this review

The views of victims and others

1.23The feeling that the trial process and its outcomes are not well-suited to dealing with sexual violence is shared by both victims and those who work in the system, including lawyers and Police.

1.24The following is a selection of comments made in submissions to our Issues Paper:21
1.25These comments align with those made in a previous research study commissioned by the Ministry of Women’s Affairs in 2009. In that study, 58 interviews and 17 surveys were undertaken of victims who had disclosed a rape or sexual assault to Police, a support agency or a professional at any time from 2000 onwards.22
1.26Thirty-six of the 75 research participants said they had reported an incident of sexual violence to Police since 2000, and an equal number did not report to Police.23 When questioned on their reasons for not reporting, respondents gave multiple responses, but the main reasons were that they did not think they would be believed, it would have an adverse effect on family/whānau, they felt shame or whakamā,24 and they were afraid of the perpetrator.25 These responses align with the high incidence of sexual violence in family or intimate partner relationships. A significant number of respondents cited a feeling of fear and distrust of the legal system (26 per cent) and previous experience with Police (23 per cent).26
1.27Seventeen of the research participants were involved in court processes.27 The 14 participants who had given evidence in court all gave negative responses when asked how it had affected them. One said:28

It was embarrassing and kind of degrading and disgusting and I felt kind of like I was the one on trial because you know the things they ask you and the things they imply and you’re in a room full of people, 90 percent of whom I don’t know talking about intimate sexual stuff. Ninety percent of them are men, you know – most of them were men.

1.28In response to questions about the experience of cross-examination, one respondent said:29

It undid a lot of the work I did in counselling on understanding the truth of what happened. It reinforced a lot of the offenders’ messages and rationales when I was a child. I almost became a child again.

1.29When questioned, those who work in or are familiar with the criminal justice system often say they would not advise victims to go through it. In another 2009 study conducted on behalf of the Ministry of Women’s Affairs, over 1300 surveys were sent to community service providers (specialist support agencies, general victim support groups, doctors and other victim advocates) and criminal justice groups (Police, judges, Crown prosecutors, and court staff).30 Of the groups surveyed, between 76 per cent and 90 per cent would recommend that a victim of sexual violence report it to Police, but only 20 to 30 per cent would recommend going through the criminal justice system.31 The reasons given by all were similar – because the criminal justice process is harmful and can re-traumatise complainants. A Crown prosecutor and a Police officer respectively made the following comments in their survey responses:32
1.30In From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand, the following comment made by a judge is noted:33

As a practicing lawyer, I was always of the view, and so was my family, that it would only be in the most extreme circumstances that you would ever advise a woman to participate in the criminal justice process if she was alleging she had been raped. …

… that is the 90 percent we are talking about – the women who do not report.

1.31In summary, the research establishes that there are many reasons why people choose not to deal with acts of sexual violence in the criminal justice system, and many of them are directly attributable to the functioning of the trial process and the limited outcomes it delivers. It seems that victims do not report because they perceive (often accurately) that the criminal trial process will not serve them and their interests well. They may feel that they will not be believed and that the ordeal of giving evidence is not worth the perceived low likelihood of a guilty verdict. Alternatively or in addition to that, the outcomes of a guilty verdict (a criminal conviction and imprisonment for the defendant) may not be outcomes that the victim wants.

1.32The result of the above is that many incidents are never reported or dealt with officially through the criminal justice system or in any other kind of way (see Chapter 2 for a discussion of the available statistics on reporting of sexual violence). The non-reporting of an act of sexual violence prevents action being taken regarding that act. If alleged offences are not reported, the evidence cannot be tested in a criminal trial, and those who may be found criminally responsible for it cannot be held accountable. The offences cannot be denounced or punished, and the objectives of the criminal justice system such as denunciation, punishment, deterrence, and public safety cannot be met.

1.33The Victims’ Rights Act 2002 contains rights and principles that are premised on the legitimate desire of victims of criminal conduct to feel some sense of participation in the justice system.34 Victims of sexual violence who do not report it are denied access to the benefit of the policy position set out in that Act and the rights that the Act contains. Those who do not report the incident to Police may also be less likely to get access to non-justice support services such as those provided by non-governmental organisations and the counselling support offered through ACC.
1.34Apart from the effect of the sexual violence itself on the victim (for instance, sexual violence has been correlated with most indicators of deprivation and poor health),35 the non-reporting of the violence may have undesirable downstream impacts on victims who may be left with a feeling that “justice has not been done”.
21Law Commission, above n 6, at 36.
22Kingi and Jordan, above n 6.
23Kingi and Jordan, above n 6, at 57.
24An adjective used to describe a range of feelings from shyness through embarrassment to shame and consciousness of fault, and behaviour involving varying degrees of withdrawal and unresponsiveness: definition from Law Commission Justice: The Experiences of Māori Women (NZLC R53, 1999) at xvi.
25Kingi and Jordan, above n 6, at 58.
26At 58.
27At 91.
28At 95.
29At 95.
30Mossman and others, above n 6.
31At 87–88.
32At 88.
33Comments of Justice Antony Ellis “The Rape Trial: Are the Scales of Justice Evenly Balanced?” in Juliet Broadmore, Carol Shand and Tania Warburton (eds) The Proceedings of Rape: Ten years’ progress? (Doctors for Sexual Abuse Care (NZ), Wellington, 1996) at 83 as cited in Elisabeth McDonald and Rachel Souness “From ‘real rape’ to real justice in New Zealand Aotearoa: The reform project” in Elisabeth McDonald and Yvette Tinsley (eds) From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, 2011) 31 at 41.
34Victims’ Rights Act 2002, ss 7–9; 11–14; 29–48.
35Te Toiora Mata Tauherenga – Report of the Taskforce for Action on Sexual Violence, Incorporating Views of Te Ohaakii a Hine – National Network Ending Sexual Violence Together, above n 11, at 1.