Contents

Chapter 8
Key issues concerning the alternative process

Risk of perpetrator committing further acts of sexual violence

8.5As noted in From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand, in an alternative process,553 particularly one operating outside of “formal criminal justice mechanisms”, where an offender is deemed to be dangerous to the community, “the wishes of the victim may need to be over-ridden in assessing the needs of the wider population”.554 The difficulty is providing the mechanism that can determine in which cases victims’ wishes should be overridden by broader community interests. A balance needs to be struck, given that overriding victims’ wishes could disempower them by denying their option to seek redress in an alternative way.555
8.6On the other hand, where there is a chance of the perpetrator committing acts of sexual violence against some other person or persons and compromising community safety, the community needs to be protected and the prosecutorial and protective functions of the criminal justice system may be required. If found guilty the perpetrator will likely be imprisoned and, in some instances, will be provided with treatment programmes, thus enhancing the prospect of community safety.556 An alternative process would place the perpetrator outside the criminal justice system and, the argument goes, this could result in a risk to the public.
8.7The view that the outcome of sexual violence is of significant public interest and the State needs to act accordingly has been expressed by Professor Jeremy Finn, who observed in correspondence to us that:557

There are issues of public safety and the safety of potential future victims of reoffending by a sexual offender which cannot be adequately addressed in a restorative justice context. However unless the case is fully investigated and prosecuted the factual basis for predicting likely reoffending will not be established and there will not be a basis for determining whether the public interest really requires a severe or indeed incapacitating sentence.

8.8However, the ability of the criminal justice system as it stands to protect society from potential reoffending is doubtful. It is also open to argument as to whether imprisonment addresses the safety of the community in the long term, other than removing offenders from the community for a period whereupon, at release, they may still pose a risk to others (unless they have received treatment and this has been successful).

8.9Project Restore considers that any “risk” to community safety exists regardless of the alternative process and this “risk” does not change just because the victim comes forward and discloses sexual violence in the process (which, without the process, they may not have disclosed at all).558 Project Restore believes the risk that a perpetrator may commit other acts of sexual violence can be managed.559
8.10In the opinion of Project Restore it could be better for a perpetrator to proceed through an alternative process and receive treatment for the causes of the sexual violence (with the possibility that this could increase the safety of the community). The effect of imprisonment may actually be to increase, rather than reduce, the likelihood of reoffending.560 Victims who have not reported to Police but opt for the alternative process may be exposed to secondary victimisation if their cases are precluded from proceeding due to perceived risks to community safety posed by the alternative process.561

8.11It needs to be acknowledged that there will always be some level of risk that a perpetrator may commit other acts of sexual violence if allowed to proceed through the alternative process. The decision then is one of policy: at what point is the risk unacceptable and how should this be measured?

Risk assessment mechanism

8.12In the Issues Paper it was proposed that “specialist providers would assess the circumstances of the case, in consultation with police, to determine whether it was suitable for an alternative resolution process. They would consider factors such as the risk posed by the accused person, the nature and strength of the evidence, and the nature of the offending”.562

8.13In this Report we continue to recommend that it would be providers who would conduct suitability assessments of cases to proceed through the alternative process (discussed further below). In our view those providers should also conduct a risk assessment to determine whether the case poses an unacceptable level of risk to community safety and therefore should not proceed through the alternative process.

8.14However, rather than providers relying on intuitive decision-making or each provider applying its own risk assessment mechanism, we recommend that these assessments should be conducted using a comprehensive risk assessment mechanism to ensure consistent, robust, and quality decision making.

8.15We discuss below some of the risk assessment mechanisms currently available and whether a new risk assessment mechanism or tool is required to implement our proposal for the alternative process.

What risk assessment mechanism?

8.16Various risk assessment mechanisms have been developed to assess the likelihood of a perpetrator reoffending again in the same way in the future or reoffending generally. For instance a New Zealand tool, the “Risk of Conviction X Risk of Reimprisonment” (known as “RoC*RoI”) is used by the Department of Corrections as a measure for deciding who should receive treatment and who can be released on parole. “Static-99” is a United States tool that was developed to assess the risk of sexual and violent recidivism by sex offenders.563 Such assessments necessarily look at a person’s past record of general criminality and antisocial behaviour. However, these may not be good predictors in respect of those who have not traditionally been imprisoned for sexual offending.564
8.17There are a number of drawbacks with the existing sex offender risk assessment tools:565
8.18The Report of the Centre for Innovative Justice and the Ministry of Justice standards for restorative justice sexual violence cases set out the kinds of matters a risk assessment would need to incorporate. Broadly, these include:567

Typology of perpetrators

8.19Researchers have attempted to categorise those who commit sexual violence in order to, amongst other things, provide appropriate programmes to different perpetrator “types”. The categorisations or “typologies” attributed to those who sexually assault adults are based on the primary motivations of those perpetrators: pervasive anger; vindictiveness; opportunism; or sexual gratification. (These are split, in turn, into subcategories).568 It may be that certain typologies (possibly those motivated by non-sadistic sexual gratification) are better suited to participation in the alternative process and therefore this may need to be considered in preparing the risk assessment framework.569

Previous offending or perpetration of acts of sexual violence

8.20Consideration needs to be given to whether all cases in which a perpetrator has a history of previous sexual offending or has committed acts of sexual violence should be automatically ruled out under any risk assessment framework. Previous offence history is not a water-tight indicator of whether or not a perpetrator will commit an act of sexual violence in the future. A “recidivist offender” may have committed an act of sexual violence which, with the right preparation, could be suitably addressed through the alternative process and “first-time offenders” may have in fact committed acts of sexual violence previously but not been detected or reported.

8.21Research from the United States spanning a 32 year period (from 1979 to 2011) highlighted that apparent “first-time” sexual offending may actually be the first detected instance of offending.570 These studies, which used self-reporting questionnaires with samples of non-incarcerated men usually from universities or the military, found that between 6.4 and 24.5 per cent of the 5098 participants reported attempting or completing rape since the age of 14. Two-thirds of the men who acknowledged perpetrating an act of sexual violence said they did so more than once.

8.22No comparable research has been conducted in New Zealand, but these studies would suggest that caution should be exercised in placing too much weight on the lack of a previous criminal history when considering so called “first-time offenders” for participation in the alternative process. We do envisage, however, that the information held by Police and other agencies about a perpetrator, including any previous offending, will be an important part of any risk assessment mechanism.

Specific mechanismTop

8.23There are currently no mechanisms that are completely appropriate or readily adaptable for the alternative process. It also needs to be acknowledged that no mechanism or tool will be perfect at predicting risk.

8.24Nevertheless, we consider that a standardised mechanism is needed. We therefore recommend that a specific risk assessment framework be developed for the alternative process, with, at a minimum, input from the sexual and family violence sectors, forensic mental health/psychological experts, and researchers. The aim would be that through application of the specific risk assessment framework, providers would be able to determine whether a case posed an unacceptable risk to community safety were it to proceed through the alternative process.

8.25Once developed, the risk assessment framework would need to be applied by all providers to ensure consistency of decision making.

Recommendations

553They were particularly discussing a restorative justice-type process.
554Elisabeth McDonald and Yvette Tinsley “Rejecting ‘one size fits all’: Recommending a range of responses” in Elisabeth McDonald and Yvette Tinsley (eds) From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, 2011) 377 at 421. We have understood “dangerous” to mean in the sense that there is a chance of the perpetrator committing further acts of sexual violence against some other person or persons and compromising community safety, however it may be that even though the risk of the perpetrator committing such further acts is low, that initial act of sexual violence committed was of such a character that society is not prepared to take the risk of a further act of sexual violence being inflicted on any other person. The latter interpretation is more akin to the second concern described in paragraph 8.3 above and will be discussed further below.
555McDonald and Tinsley, above n 554, 377 at 421.
556Some offenders may receive treatment in prison. However, most programmes are targeted at those who offend against children (Kia Marama and Te Piriti). There is a relatively recent programme for offending against adults that has been extended to three prisons, Spring Hill, Waikeria and Christchurch Men’s. The criteria for entry is that the offender is serving a sentence of imprisonment of five years or more for an offence of serious sexual assault against a victim aged over 16 years and is assessed as medium-high or greater on the Automated Sexual Recidivism Scale (medium-high is a 24 per cent rate of sexual recidivism over 10 years). The offender needs to accept responsibility for the offending and consent to participate in the programme. See Nick J Wilson, Glen Kilgour and Devon LL Polaschek “Treating high-risk rapists in a New Zealand intensive prison programme” (2013) 19 Psychology, Crime & Law 511.
557Email from Professor Jeremy Finn (Canterbury University) to the Law Commission regarding alternative trial processes (8 October 2015).
558Correspondence from Project Restore to the Law Commission regarding alternative trial processes (7 September 2015).
559Meeting between Project Restore and the Law Commission (19 October 2015).
560Correspondence from Project Restore to the Law Commission regarding alternative trial process (7 September 2015). Daly argues that punitive strategies, such as increased criminalisation and penalisation, can deepen social and economic inequalities and in fact entrench reoffending (amongst other problems): Kathleen Daly Conventional and innovative justice responses to sexual violence (Australian Centre for the Study of Sexual Assault, Issues Paper 12, 2011) at 25.
561Correspondence from Project Restore to the Law Commission regarding alternative trial process (7 September 2015).
562Law Commission Alternative Pre-trial and Trial Processes: Possible Reforms (NZLC IP30, 2012) at 51.
563LW Bakker, David Riley and James O’Malley ROC, risk of reconviction (Department of Corrections, Wellington, 1999) and Andrew Harris and others STATIC-99 Coding Rules (Corrections Directorate Canada 2003). Email from Danica McGovern to the Law Commission regarding repeat undetected perpetration (7 October 2015).
564Email from Danica McGovern to the Law Commission regarding risk issues (29 September 2015).
565Email from Danica McGovern to the Law Commission regarding risk issues (29 September 2015).
566Those who sexually abuse children differ from those who sexually abuse adults. Although we envisage there will be some perpetrators who go through the alternative process in respect of historic sexual abuse against children, and these risk tools may be relevant to them, we anticipate that the majority would be perpetrators of sexual violence against adults, and therefore these tools will not be appropriate. Email from Danica McGovern to the Law Commission regarding risk issues (29 September 2015).
567Centre for Innovative Justice Innovative justice responses to sexual offending - pathways to better outcomes for victims, offenders and the community (2014) at 48–50; Restorative justice standards for sexual offending cases (Ministry of Justice, 2013) at 19. The latter draw on Project Restore Restorative Justice for Sexual Violence: Principles of good practice (Project Restore NZ, 2010).
568Raymond A Knight “Validation of a Typology for Rapists” (1999) 14 Journal of Interpersonal Violence 303 at 311.
569Danica McGovern notes that many of the typology studies have been conducted with perpetrators who have been imprisoned; it is not clear whether a population of non-incarcerated perpetrators would fit within these typical typologies: email from Danica McGovern to the Law Commission regarding repeat undetected perpetration (7 October 2015).
570Figures extrapolated from the following studies: Esther J Calzada, Elissa J Brown and Megan E Doyle “Psychiatric Symptoms as a Predictor of Sexual Aggression among Male College Students” (2011) 20 Journal of Aggression, Maltreatment & Trauma 726; Stephanie K McWhorter and others “Reports of Rape Reperpetration by Newly Enlisted Male Navy Personnel” (2009) 24 Violence and Victims 204; David Lisak and Paul M Miller “Repeat Rape and Multiple Offending Among Undetected Rapists” (2002) 17 Violence and Victims 73; Neil M Malamuth and others “Using the Confluence Model of Sexual Aggression to Predict Men’s Conflict With Women: A 10-Year Follow-Up Study” (1995) 69 Journal of Personality and Social Psychology 353; Heidi M Zinzow and Martie Thompson “A Longitudinal Study of Risk Factors for Repeated Sexual Coercion and Assault in US College Men” (2015) 44 Archives of Sexual Behavior 213; and Antonia Abbey and others “Patterns of Sexual Aggression in a Community Sample of Young Men: Risk Factors Associated with Persistence, Desistance, and Initiation Over a 1-Year Interval” (2012) 2 Psychology of Violence 1.