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, 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”. 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.
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. 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:
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). Project Restore believes the risk that a perpetrator may commit other acts of sexual violence can be managed.
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. 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.
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”.
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. 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.
8.17There are a number of drawbacks with the existing sex offender risk assessment tools:
- They were designed for those who predominantly or exclusively commit acts of sexual violence against children, not adults.
- They have been developed for those who have been convicted of a sexual offence, whereas the population that is being targeted in the alternative process may not be typical of the same population and it is not known how well the tools might work with that population.
- Most existing assessment tools have been developed for North American offenders and are therefore based on their characteristics and rates of reoffending.
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:
- the characteristics of the victim, including age, background, cognitive capacity, sensitivities, needs, and psychology;
- the characteristics of the perpetrator, including age, background, cognitive capacity, sensitivities, needs (including drug and alcohol abuse), and psychology, including an assessment of personality pathology in any previous antisocial behaviour or previous criminal history;
- the level of insight and remorse demonstrated by the perpetrator;
- the nature, seriousness and circumstances of the act of sexual violence including whether the behaviour was ongoing and chronic or circumstantial; whether violence or other criminal offending was involved; or whether deception or concealment was involved;
- whether multiple perpetrators or multiple victims were involved; and
- the broader family, cultural and community context in which the act of sexual violence occurred, including any cultural distortions of notions of shame or the harm caused.
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). 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.
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. 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.
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.
- R31 A risk assessment framework should be developed specifically for the alternative process, with, at a minimum, input from the sexual and family violence sectors, forensic mental health/psychological experts, and researchers in the field.
- R32 Providers should apply the risk assessment framework to determine whether cases pose an unacceptable risk to community safety and should not proceed through the alternative process.