Contents

Chapter 8
Key issues concerning the alternative process

Use of alternative process in cases involving intimate partner violence

8.35As noted in From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand, concerns have been expressed at the use of mediation or restorative-type processes in situations involving intimate partner violence.573 Intimate partner violence can be characterised as a harmful pattern of relating in which the perpetrator manipulates or exercises power and control over a victim, often over a long period of time, and may be indicative of an inherent power imbalance between the partners in a relationship. It is likely to be difficult to properly address that power imbalance within an alternative process and achieve a fair outcome. Another concern is that, by conducting these processes outside the criminal justice system, the seriousness of intimate partner violence is potentially diminished.574

8.36A further concern expressed during consultation was that, as there is a potential benefit to perpetrators in participating in the alternative process (because if the process is completed then there will be a statutory bar on prosecution of the same incident), victims may be coerced into participating against their will or subjected to physical, emotional or psychological abuse during or as a result of the process.

8.37In consultation, members of the Family Violence Death Review Committee (FVDRC) expressed the view that restorative justice processes for sexual violence (particularly in cases involving ongoing family violence) are potentially unsafe. That view has also been expressed by a number of academics including Julie Stubbs and Anne Cossins.575 Before any restorative justice-type processes could be applied to cases involving intimate partner violence, the FDVRC would want to see:576

a stronger evidence base for improved outcomes in terms of victim safety and satisfaction and reduced recidivism before introducing restorative justice into situations that involve ongoing offending. Such interventions are a particular concern in family violence cases where remorse and apology can be part of the abuse process and where offender programmes in New Zealand do not accord with international standards of safe practice.

8.38Others have taken a different view and argued that some form of restorative type process or innovative justice mechanism may be possible in response to acts of sexual violence sexual and/or intimate partner violence in a way that does not subject victims to secondary victimisation.577 This has been demonstrated in respect of sexual violence (and, more recently, in respect of intimate partner violence) in New Zealand by the use of restorative justice-type processes through Project Restore. Advocates suggest that restorative justice-type processes may be an effective option for cases of “acquaintance rape” or acts of sexual violence within a family context. However, as noted in From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand, the category of “acquaintance rape” contains a large variety of acts of sexual violence, not all of which may be properly dealt with outside the traditional criminal justice process:578

It has not been established to date that (all) rape cases can be effectively dealt with, from a victims’ perspective, by a restorative justice process. The indications are that it may be possible, but not in every case, not for every victim, and not without thoughtful development of the best process.

8.39The key question that arises here in the context of the alternative process is: whether the risks to victims of sexual violence (where that occurs in the context of intimate partner violence) can be sufficiently and safely managed in the alternative process proposed.

8.40As this Report is focused on sexual violence, not intimate partner violence, we accept that there may well be concerns about the provision of the alternative process to cases that involve both sexual violence and intimate partner violence. We do not wish to propose a process that may inadvertently cause more harm to victims of intimate partner violence.

8.41Project Restore has, in the last year, been undertaking more cases involving sexual violence in the context of intimate partner violence. In its experience, such cases are far more complex, time intensive and difficult to safely manage than cases involving only sexual violence. It has urged caution in including such cases until such time as programmes are properly developed and the lack of coordination in the family violence sector is addressed.579
8.42We agree that it would help to continue building the evidence base, developing programmes, and building capacity so that there are providers with the understanding of the dual dynamics of both intimate partner and sexual violence.580 However, we are also reluctant to exclude a significant group of people (mostly women) from the alternative process because the sexual violence they are subjected to is occurring in the context of intimate partner violence.

8.43We therefore consider that where the alternative process is determined to pose a safety risk to victims, those cases should be assessed as ineligible under the suitability assessment, which is discussed in the next section.

Recommendation

573McDonald and Tinsley “Rejecting ‘one size fits all’: Recommending a range of responses” in McDonald and Tinsley (eds), above n 554, at 419.
574At 419.
575Anne Cossins “Prosecuting Child Sexual Assault Cases: To specialise or not, that is the question” (2006) 18 Current Issues in Criminal Justice 318; Julie Stubbs “Chapter 17: Gendered Violence and Restorative Justice” in Hayden, Anne and others (eds) A Restorative Approach to Family Violence (Ashgate Publishing, Surrey, UK, 2014).
576Letter from Family Violence Death Review Committee to the Law Commission regarding alternative trial processes reference (16 September 2015).
577We note, however, that the alternative process is not a restorative justice process per se, although some programmes may use a tailored restorative justice-type approach.
578McDonald and Tinsley “Rejecting ‘one size fits all’: Recommending a range of responses” in McDonald and Tinsley (eds), above n 554, at 420.
579Meeting between Project Restore and the Law Commission (19 October 2015).
580Our understanding is that at present, specialists in the sector tend to operate in the area of intimate partner violence/family violence or sexual violence but not both.