Court specialisation for sexual violence cases
Issues Paper proposal for a specialist sexual violence court operating post guilty-plea
5.97A proposal was made in the Issues Paper for a specialist sexual violence court to which a perpetrator who pleaded guilty to a sex offence could be referred. The key features of that court are summarised below, and are more fully set out in the Issues Paper:
- Following entry of a guilty plea in the normal manner, a court would refer cases that appeared to meet the governing criteria to the specialist court for consideration.
- Once referred to the specialist court, the judge would remand the case for a full assessment by a team of specialists to ensure its suitability.
- 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, with an intervention plan comprising a tailored set of actions for the individual to complete, including treatment, education, reparations, apologies or other actions as appropriate.
- If the specialist court judge was satisfied on the basis of the report that the case was suitable, 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 a specialist team, with the specialist court judge being able to seek periodic reports on the offender’s progress and bring the offender back before the court if necessary.
- If the offender was declined entry to the specialist court or refused to commit to the intervention (or entered but later withdrew the agreement to participate), the case would proceed to sentencing in the usual manner.
- At the conclusion of the intervention, the offender would receive a sentence that would reflect his or her participation in and progress after the intervention, which may or may not include imprisonment.
5.98This proposal was very strongly supported by submitters to the Issues Paper and in subsequent consultation it also received support from a number of quarters. Submitters suggested it could address a range of problems, for example:
- it could remove or mitigate the incentive to plead “not guilty” in sexual violence cases, by encouraging acceptance of responsibility and participation in treatment and providing greater flexibility in sentencing where appropriate;
- it could help increase reporting of sexual violence, since imprisonment would not be the only possible outcome of a conviction; and
- it could reduce reoffending by the provision of treatment.
5.99To these arguments we would add another, which relates to our proposal in Part C of this Report. In Part C we recommend a process outside the criminal justice system that victims and perpetrators could go through, which would not result in conviction but might involve a perpetrator making certain undertakings (for example, to complete treatment for harmful sexual behaviours). But the gap between an outcome of this kind and a criminal trial (conviction and imprisonment) could be viewed as disproportionately large. If a treatment court were also in operation, that could provide a middle-ground. For instance, an outcome of the treatment court could be a criminal conviction but with a suspended sentence and no imprisonment if treatment is completed. Put another way, the treatment court would add to the “suite” of options available to deal with an act or acts of sexual violence, that goes from least interventionist (an apology offered as part of an alternative process) to most interventionist (imprisonment) with a treatment court option in the middle.
5.100However, what also became apparent during consultation was the degree of extra research required to give effect to this proposal. One reason is because the design of the court, and whether it would address the problems raised by submitters, relies on empirical evidence that has not yet been gathered or is not yet available.
5.101To discuss these matters we met with researcher Danica McGovern who is currently completing a PhD thesis that examines what would be required to implement a model similar to that proposed in the Issues Paper. The initial intention was to develop a model for a “treatment track” for those who plead guilty to sexual violence offences which could be implemented in New Zealand, but it became clear in the early stages of the research that much more work was needed before such a model could be developed or its feasibility evaluated. As such, the thesis will examine three areas of further work required: the aims of a treatment track; its theoretical framework; and the development of a risk assessment framework for use in that context.
5.102Therefore we note the support expressed for the proposal and its potential to address the problems above, depending on how it is designed. We note the need for additional research to be undertaken before those design questions can be resolved. We recommend that the Government consider the desirability of funding a long-term research project to examine these matters.
- R27 The Government should consider the desirability of funding a long-term research project to examine the feasibility and design of a specialist sexual violence court to operate post-guilty plea, in the form proposed in the Law Commission paper Alternative Pre-trial and Trial Processes: Possible Reforms (NZLC IP30, 2012).