Contents

Chapter 7
The case for an alternative justice mechanism

The criminal justice system and victims’ justice needs

What are the justice needs of victims?

7.4In Part B we consider a range of reforms to minimise the potential trauma of the trial process for victims of sexual violence. An improved trial process may encourage more victims to report sexual violence.

7.5However, many victims will simply never want to go to trial, believing that their justice needs are unlikely to be met – or perhaps because their individual needs are simply unrelated to any form of justice outcome (for example, the victim wants only therapy to help deal with the effects of sexual violence).

7.6Kathleen Daly, a Professor of Criminology and Criminal Justice at Griffith University in Brisbane, suggests that we should look beyond victim satisfaction, a subjective and isolated concept, to find a way to empirically assess the usefulness of different justice mechanisms. Building on the work of both herself and others, Daly refers to the “justice interests” or “justice needs” of victims.503 These interests are linked to justice outcomes rather than to survival, physical, psychological, security and support needs, all of which must also be addressed in the aftermath of sexual violence.
7.7The five elements identified by Daly as being necessary to give effect to a victim’s justice needs/interests are:504
7.8Daly suggests that an effective “justice mechanism”505 for addressing the justice needs/interests of victims could be identified with reference to these elements, or, as described by Koss and Achilles (drawing on several studies from the United States) as the:506

need to tell their own stories about their experiences, obtain answers to questions, experience validation as a legitimate complainant, observe offender remorse for harming them, receive support that counteracts isolation and self-blame and above all have choice and input into the resolution of their violation.

7.9Judith Herman, a Professor of Psychiatry at Harvard Medical School, has found that most victims studied in her research are not overly punitive in their views and that they do not necessarily want retribution for the crime.507 Additionally, although some victims agreed unanimously that rehabilitation of the perpetrator would be desirable and something the victim could sanction, they tended to doubt the likelihood of this occurring.508 In Herman’s study, most victims wanted acknowledgement of the harm done to them, the harm to be validated by their community, to know they were not to blame and for the “burden of disgrace” to fall on the accused, rather than themselves.509
7.10A study by the Ministry of Women’s Affairs concludes that the types of outcomes sought by victims of sexual violence are to ensure that the perpetrator is held accountable, to protect others, and to protect themselves from the perpetrator.510 Work by Shirley Jülich and Fiona Landon in New Zealand has looked at what “justice” means to adult survivors of sexual violence, noting that “recovery, healing and justice were interdependent”.511

Are victims’ justice needs currently being met within New Zealand’s existing criminal justice system?Top

7.11The criminal justice system has a specific set of functions which limits its ability to meet the justice needs of victims of sexual violence. The justice needs of one victim will differ from the justice needs of another victim and, for some victims, justice needs may not even be a pressing consideration. Yet there is currently only one justice response to sexual violence: the criminal justice system.

7.12Research indicates that participants in the criminal justice system find it to be “an artificial, alienating and disempowering process that does not produce an outcome in which they have confidence”.512 Doctors for Sexual Abuse Care stated in their submission on the Issues Paper that “many complainants choose not to report offending due to the negative experiences of a court process and the prescribed rigid consequences for the offender”.513
7.13Victims’ justice needs are complex, individualised, and unlikely to be easily met within the criminal justice system. The failure to accommodate the complex needs of victims within the criminal justice system can inadvertently cause trauma, distress, and secondary victimisation. Judith Herman argues that “if one set out intentionally to design a system for provoking symptoms of traumatic stress, it might look very much like a court of law”.514
7.14Herman writes that “the wishes and needs of victims are often diametrically opposed to the requirements of legal proceedings” and that “the victim’s vision of justice is nowhere represented in the conventional legal system”.515 She argues that more victims might be willing to participate in legal proceedings if they believed there were outcomes that could potentially make the ordeal worthwhile. However, she notes that “even a successful legal outcome does not promise much satisfaction, because [victims’] goals are not congruent with the sanctions that the system imposes”.516

7.15Thus, reform of the criminal justice system may result in a less traumatic experience for the victim. The recommendations in this part of our Report do not seek to displace the function of the criminal justice system, which rightly prioritises fair trial protections for defendants whose liberty is at stake. However, because the criminal justice system is designed to punish offending and is offender-focused, it is not well-placed to give effect to the diverse justice needs of victims.

7.16We know that on the one hand, a failure to address the justice needs of victims of sexual violence can have significant long-term consequences for victims and society, as discussed in Part A. On the other hand, there are certain types of sexual violence for which, because of its seriousness or other characteristics, there is a public interest in dealing with it in the criminal justice system.

7.17Accordingly, there will be a portion of sexual violence where the victim seeks a justice-type outcome but does not wish to engage with the criminal justice system (regardless of any changes made). In these circumstances, it is preferable that victims have an alternative justice mechanism to access.

7.18There is a justified case for looking at innovative justice mechanisms to deal with sexual violence outside of the criminal justice system. Concerns have been raised by submitters to this project regarding any alternative justice mechanism that sits outside of the criminal justice system. Submitters noted the criminal justice system plays an important role in society. We realise that constitutional issues must be dealt with when introducing an alternative to criminal trial (for instance, an alternative process could be perceived as merging executive and judicial functions) and that there are certain protections, such as fair trial rights of the defendant, which must be upheld.

The role of victims in the criminal justice systemTop

7.19The role of the criminal justice system is to determine beyond reasonable doubt whether or not an accused person is guilty of alleged offending and if so, to determine an appropriate criminal sentence.

7.20Some criminal legal theorists517 are wary of expanding the role of victims in the criminal justice system because it is the responsibility of the State, not individuals, to “ensure that there is order and law-abidance” and to shoulder the “burden” on behalf of citizens of bringing offenders to justice.518 Doak, in critiquing that view, has described it thus:519

Conceptually, victims have no role to play in the modern criminal justice system other than to act as “evidentiary cannon fodder”. …Therefore, although many victims may feel as though they are “owed” a right to exercise a voice in decision-making processes, such as prosecution…the criminal justice system places such rights or interests in a firmly subservient position to the collective interest of society in prosecuting the crime and imposing a denunciatory punishment.

7.21The issue of what role should be played by the victim in the context of the criminal justice system is not new. The Ministry of Justice has noted that there are benefits in providing for greater victim involvement in the criminal justice system, and thought that such involvement should extend from the time a crime occurs until the offender completes his or her sentence.520 The Ministry stated in a 2009 Report on victims’ rights that “a greater focus on victims will assist in reducing the cost and impact of crime on individuals and on society in general”.521 It went on to note that:522

improved responsiveness to victims will enhance the effectiveness of, and the public confidence in, the criminal justice system. Such confidence is necessary for those victimised by the crime and for the whole community.

7.22Indeed, the criminal justice system is increasingly using innovative means by which to address offending, in ways that seem to be compatible with greater recognition of victims’ needs. For example, youth criminal offending can be dealt with in family group conferences held completely outside of the Youth Court or criminal justice system.

7.23Even if the criminal justice system is able to fulfil its functions and accommodate greater victim participation in the trial process, the question being considered here is whether it is possible to meet all the justice needs of victims within the criminal justice system.

503In this Report we have tended to use the term “justice needs” but when we do so we are referring to the construct of justice interests or needs that Daly has identified and which are defined above.
504Kathleen Daly “Reconceptualizing sexual victimization and justice” in Inge Vanfraechem, Antony Pemberton and Felix Mukwiza Ndahinda (eds) Justice for Victims (Routledge, Abingdon, 2014) at 388.
505Traditional mechanisms would include criminal prosecution, sentencing or victim impact statements which could then be measured against alternative or “innovative” justice mechanisms.
506Mary Koss and Mary Achilles Restorative Justice Responses to Sexual Assault (National Online Resource Center on Violence Against Women, 2008) at 2.
507Judith Herman “Justice From the Victim’s Perspective” (2005) 11 Violence Against Women 571 at 597.
508At 597.
509At 585.
510Restoring soul: Effective interventions for adult complainant/survivors of sexual violence (Ministry of Women’s Affairs, 2009) at 68.
511Shirley Jülich and Fiona Landon “Restorative Justice and Sexual Violence: Overcoming the Concerns of Victim Survivors” in T Gavrielides (ed) A Victim-Led Criminal Justice System: Addressing the Paradox (Independent Academic Research Studies, London, 2014) 41 at 45.
512Restoring soul: Effective interventions for adult complainant/survivors of sexual violence (Ministry of Women’s Affairs, 2009) at 37.
513Law Commission Alternative Pre-trial and Trial Processes: Summary of Submissions to Consultation (December 2012) at [535].
514Judith Herman “Justice From the Victim’s Perspective” (2005) 11 Violence Against Women 571 at 574.
515At 575.
516At 575.
517See A Ashworth "Responsibilities, Rights and Restorative Justice" [2002] British Journal of Criminology 578 at 579.
518A Ashworth, above,  at 579; Jonathan Doak “Victims’ Rights in Criminal Trials: Prospects for Participation” (2005) 32 JL & Soc’y 294.
519Jonathan Doak Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties (Hart Publishing, Oxford, 2008) at 35–36.
520A Focus on Victims of Crime: A Review of Victims’ Rights (Ministry of Justice, 2009) at 4.
521At 4.
522At 4.