Contents

Chapter 7
The case for an alternative justice mechanism

The proposal in the Issues Paper

Proposal

7.24The Issues Paper proposed an alternative process to resolve certain sexual violence cases outside of the criminal justice system.523

7.25The Issues Paper proposed that the suitability of the case would be determined by specialist providers, and would include an assessment of the risk to community safety. This would be done in consultation with Police and other agencies where appropriate. The exact process, however, would be tailored to the nature of the case, the victim’s wishes, and the need to ensure victim safety.

7.26One important aspect of the proposal was how it would interrelate with the criminal justice system. It was proposed that nothing said by a perpetrator in the course of the alternative process could be used as evidence in criminal proceedings. However, if the information provided related to other offending, this could trigger further police investigation and any information obtained as a result of that further investigation could be used in criminal proceedings.

7.27The proposal also explored what such a process might look like. It was suggested that:

SubmissionsTop

7.28Our recommendation in this Report builds on the proposal in the Issues Paper, taking into account the submissions received on the Issues Paper and subsequent consultation.

7.29Concerns raised by submitters included: the potential risk to the community if the offender was not in custody; risk to the victim if the process was not properly managed (including as a result of delay and insufficient resources); the potential for discrepancy in the process between offenders; and the perception that this process lacks a strong public statement against sexual violence.524 One submitter considered the proposal unworkable and that victims would not want the perpetrator to be “free and able to offend against others”.525
7.30This proposal received very strong support from submitters who saw the utility of such a proposal in terms of being able to include more victims and perpetrators in a justice process. For example, JustSpeak said:526

an alternative process provides the opportunity for lower-level offenders who would otherwise plead not guilty – and in many cases would not be convicted due to a lack of evidence or subjective interpretations of the events – to be held accountable and engage in a process of redress with the victim.

7.31Submitters who supported the proposal commented on its potential to work well in cases involving offending between peers or within families, and in those cases where there is not a strong evidential basis. They thought it would provide an opportunity for a healing process for the victim in a safe, supportive environment where they are in control, with a flexible process that is tailored to their needs, and that it would enable greater participation by the victim and give them validation, as well as a greater range of options for addressing the behaviour, which were all rated as important among victims who submitted.

7.32Doctors for Sexual Abuse Care (DSAC) submitted in favour of the proposal, stating that “for victims who are well supported, it can be a liberating and healing experience to confront the offender and have their pain acknowledged and be given the opportunity to reclaim a sense of control”.527

7.33Submitters to the Issues Paper expressed dissatisfaction and disappointment with the way that criminal trials are currently conducted. There was clearly a desire amongst submitters, reinforced by people we spoke to, for alternative ways of dealing with sexual violence in which victims have more control and input. Comments included:

I feel the enquiries and investigation could be more inclusive between the victim and offender, giving both the strength to tell the truth and the confidence to move forward with greater knowledge as to why and where the real fault lay. … I feel a case like this could be dealt with in a far more civil environment, a more open forum with more discussion and closure.528
A restorative justice process would allow closure for the victim and the defendant earlier than the drawn out legal process.529
Restorative justice used in certain circumstances can give complainants and their families an opportunity to experience a sense of justice that is not always available within the criminal justice system.530

7.34Many submitters commented on the particular features of the proposal they considered to be extremely important. These included: the need for informed consent; the need for guidelines taking account of community safety and eligibility factors; consideration of when it would be appropriate to refer cases back to the criminal justice system; the potential waste if a process was started and then abandoned; the need to incorporate multi-cultural perspectives including those of Māori; and the need for specialised and properly resourced providers and effective cross-agency communication.

523Law Commission Alternative Pre-trial and Trial Processes: Possible Reforms (NZLC IP30, 2012) at 48–52.
524Law Commission Alternative Pre-trial and Trial Processes: Summary of Submissions to Consultation (December 2012) at [546].
525At [553].
526At [545].
527At [535].
528At [138].
529At [549].
530At [535].