Contents

Chapter 5
Court specialisation for sexual violence cases

The experience overseas

5.18Court specialisation in the area of sexual violence occurs in a number of overseas jurisdictions and takes a variety of forms.

South Africa

5.19The first specialist court designed to deal specifically with sex offences was established in Wynberg, South Africa in 1993 and several more were subsequently set up throughout the country.

5.20The South African sex offence courts took a complainant-focused approach to achieve their objectives. They were established in part to address the very high rate of reported rapes in the country and as a mechanism to reduce the secondary victimisation experienced by victims when they engaged with the criminal justice system.359 In that vein, the first court established at Wynberg had three objectives, which were:360
5.21After four years in operation, the Wynberg Court was positively evaluated361 and the South African Department of Justice was called upon to draft a “Blueprint for Sexual Offences Courts in South Africa” that would permit the national roll-out of these courts.362 By March 2004, 47 such courts had been established. From 2005 the courts declined due to concerns about distribution of court resources. However, a ministerial advisory team has recently recommended that they be re-established.363

New South Wales, AustraliaTop

5.22A specialist court to deal with sexual violence against children was established as a pilot in Sydney, Australia in March 2003, on the back of recommendations made by the Legislative Council Standing Committee on Law and Justice.364
5.23The pilot court was focused on improving the experience for victims. An independent assessment of the court determined that the court’s features were variously aimed at (1) reducing delays, (2) improving the physical environment of the court, or (3) increasing the skills of the legal professionals involved.365 The overall purpose of the pilot project was to assess whether the implemented measures would “improve the experiences of child sexual assault complainants and/or the success rates of prosecutions”.366 However, the evaluation, which was conducted in 2005, found that the specialist court was not wholly successful in achieving its objectives, in part because although judicial and prosecutorial training was available, it was not always taken up.367

Victoria, AustraliaTop

5.24A special listing procedure for sexual violence cases is currently in operation in Victoria, as a result of recommendations made by the Victorian Law Reform Commission in 2003.368 An evaluation in 2011 reported that those lists were speeding up the preparation of cases and improving the efficiency of court hearings.369

England and WalesTop

5.25In England and Wales, Crown court judges are required to complete a three-day specialist training course before they are permitted to sit on sexual violence cases, and judges must also be considered suitable to conduct such trials. The completion of the necessary requirements results in the judge obtaining what is colloquially referred to as a “sex offences ticket”.

5.26The original intention was to create a separate court, but it soon became apparent that, given the high volume of sexual violence cases within the courts, it was not possible to staff a separate sex offences court and there would not be enough judges willing to work only in that court.370 The sex offences ticket aims to overcome this problem in that it does not single out a specific pool of judges to only hear sex offences.
5.27Uptake of the sex offences ticket has been widespread. As at 2010, 496 of the 686 circuit judges of England and Wales had the qualification as did approximately 200 part-time judges.371

New YorkTop

5.28Sexual violence courts of a slightly different kind exist in New York. Those courts are “a bridge over the traditional divide between the criminal justice system and the correctional system”.372 They are involved not only in the prosecution of cases, but also in the ongoing monitoring of compliance with sentences after conviction.373 Their objective is to increase the accountability of people found guilty of sexual violence offences and to enhance community safety while also protecting the rights of defendants.374
5.29Based on the latest available information, there are currently seven such courts in operation in different counties of New York and they form part of each county’s Supreme Court.375 They are complemented by specialised police units.376 Court personnel receive special training and the courts provide counselling and information to victims.
359Ministerial Advisory Task Team on the Adjudication of Sexual Offence Matters Report on the Re-Establishment of Sexual Offences Courts (Department of Justice and Constitutional Development, 2013) at 17.
360S Stanton, M Lochrenber and V Mukasa Improved justice for survivors of sexual violence? Adult survivors’ experiences of the Wynberg Sexual Offences Court and associated services (Rape Crisis Cape Town, African Gender Institute, Cape Town, 1997) at 148.
361South African Human Rights Commission Report on Sexual Offences Against Children: Does the Criminal Justice System Protect Children? (April 2002) at 29.
362At 29.
363Ministerial Advisory Task Team on the Adjudication of Sexual Offence Matters, above n 359.
364NSW Standing Committee on Law and Justice Report on Child Sexual Assault Prosecutions (Parliamentary Paper No. 208, Report 22, 2002) recommendation 43 at [7.38].
365Judy Cashmore and Lily Trimboli An Evaluation of the NSW Child Sexual Assault Specialist Jurisdiction Pilot (2005) at ix.
366NSW Standing Committee on Law and Justice Report on Child Sexual Assault Prosecutions (Parliamentary Paper No. 208, Report 22, 2002) at 208.
367Cashmore and Trimboli, above n 365, at 61.
368Victorian Law Reform Commission, above n 352, at 183-185.
369Department of Justice Sexual Assault Reform Strategy – Final Evaluation Report (Department of Justice, Melbourne, 2011) at ii.
370Record of phone conversation between Joyce Plotnikoff and the Law Commission regarding questioning of vulnerable witnesses (27 February 2015).
371Vivian Stern The Stern Review: An Independent Review into How Rape Complaints are Handled by Public Authorities in England and Wales (UK Home Office, 2010) at 92.
372Annie Cossins Alternative Models for Prosecuting Child Sex Offences in Australia (National Child Sexual Assault Reform Committee 2010) at [5.106].
373At [5.111].
374“Problem-Solving Courts: Sex Offense Courts Mission & Goals” (7 December 2012) <www.nycourts.gov>.
375“Problem-Solving Courts: Sex Offense Courts Overview” (5 August 2015) <www.nycourts.gov>. The counties are Orange County; Westchester County; Nassau County; Suffolk County; Queens County; Tompkins County; and Oswego County.
376Cossins, above n 372, at [5.105].