Contents

Chapter 8
Key issues concerning the alternative process

Suitability of individual cases

8.44The last of the four concerns noted at the outset of this chapter concerns the suitability of individual cases to proceed through the alternative process, given the potential risk that the victim will be subjected to further victimisation by the perpetrator within the alternative process and may be emotionally unsafe. This may be due to the young age of the victim and/or perpetrator, the age gap or power imbalance between the victim and perpetrator, coercion to be involved in the process, or the perpetrator not taking responsibility for the acts in question.

8.45There is also the possibility, discussed above, of victims in intimate partner relationships being subject to physical violence (or other forms of violence) or being coerced into participation.

“Suitability assessment”

8.46To counter these risks, we propose that providers of programmes under the alternative process should conduct a “suitability assessment” of the case. It would be the responsibility of the provider to determine through the suitability assessment if it was suitable for the victim and perpetrator to proceed through the alternative process or whether there was a risk of the victim being subject to secondary victimisation, coercion, or physical or other forms of violence. There may also be a risk to the perpetrator’s physical safety from the victim’s family/whānau or others, that the provider would need to consider.

8.47As we discuss in the next chapter, in order for a perpetrator to be eligible for the alternative process, we propose that a perpetrator will (amongst other things) have to acknowledge that the sexual encounter or act occurred.581 Therefore, as part of the suitability assessment, a provider would need to assess the perpetrator’s ability to accept responsibility for the act and to move to a point of acknowledging the harm caused to the victim and to make redress. The capacity of the perpetrator to do so is an important part of the alternative process. If the perpetrator is unable to do so, continuing with the alternative process may cause the victim further harm as the perpetrator will neither be offering a genuine apology nor inclined to make other redress or address the causes of the behaviour.
8.48This is currently the basis on which Project Restore assesses perpetrators for inclusion in restorative justice conferences. This assessment (as part of the whole suitability assessment) is undertaken within Project Restore by a multi-disciplinary team comprising a psychologist and two specialists in sexual violence, one operating from the perpetrator perspective and one from the victim perspective.582

8.49Also in terms of the model proposed, the suitability assessment may also need to take into account:

8.50We do not envisage that the alternative process will be able to be used by a perpetrator on multiple occasions, as previous participation may indicate a previous lack of genuine engagement in the process (and may have a bearing on the likelihood of the perpetrator committing further acts of sexual violence). However, there may be instances where a perpetrator is assessed by the provider as suitable to participate, despite having previously participated in the alternative process.

8.51As a result of the assessment, a provider may determine that the case is suitable to proceed through the alternative process. Alternatively a provider may decide that it would be unsafe, in a physical, psychological, or emotional sense, for the victim (or perpetrator or others, such as family members) if the case were to proceed through the alternative process or that, due to the presence of factors such as those outlined above, it would not be suitable for the case to proceed through the alternative process.

8.52The suitability assessment needs to be ongoing throughout the delivery of the programme. Project Restore has told us of instances where they have commenced working with a victim and a perpetrator, preparing them for a restorative justice conference, but some way along the process decided it would be detrimental to the victim were the process to continue and have therefore stopped the process (for instance, the perpetrator has not moved from the position of blaming the victim for what occurred, thus putting the victim at risk of further victimisation).584

8.53The suitability assessment is necessarily subjective and its effectiveness will rely to a large extent on the knowledge and experience of the providers conducting the assessments. As we set out in the next chapter, those assessing the cases and providing programmes must be trained and experienced in working with, and understanding the dynamics of, sexual violence.

Recommendation

581This does not necessarily equate, at this point in the process, to the perpetrator acknowledging that it was an act of violence or that harm has been caused to the complainant as a consequence, but the suitability assessment would involve consideration of whether a perpetrator is likely to be able to move to that point: see Chapter 9. 
582Shirley Jülich and others Project Restore: An Exploratory Study of Restorative Justice and Sexual Violence (AUT University, May 2010).
583See Appendix C.
584Meeting between Project Restore and the Law Commission (19 October 2015).