Contents

Chapter 9
Proposal for reform

Confidentiality

9.133We consider that in order for the victim and perpetrator to engage freely in and receive the most benefit from the alternative process, any statements and communications made during the alternative process need to be confidential. The question of whether the fact of participation of the victim and perpetrator in the alternative process should itself also be confidential is a somewhat more vexed question.

9.134Negative inferences could be attributable to a perpetrator who participates in the alternative process, because in order to participate the perpetrator needs to accept there was a sexual encounter (which, at a minimum, the victim does not accept was consensual, as otherwise he or she would not be seeking to participate in the alternative process). Yet the victim may wish to talk about participation in the process with family and friends or for example seek counselling support. A victim who withdraws from the alternative process will also need to be free to advise Police that she or he had attempted the alternative process, withdrawn from it and now wished to make a complaint regarding the sexual violence committed against her or him.648

9.135One possibility to address this would be to prohibit information about participation in the alternative process being commented on in the public arena in such a way that the perpetrator’s participation in the alternative process is able to be identified. Some guidance may be drawn from the law around name suppression and court suppression orders, although this may extend further than what is needed or appropriate in this context.

9.136The protection of confidentiality would need to be set out in legislation, with any breach through publication being a punishable offence. How confidentiality is defined will be a policy decision, and the implications of the definition chosen will need to be further worked through.

9.137We do consider however that any protection of confidentiality should be enduring (subject to the exceptions noted below) because the damage to somebody’s reputation, career prospects and livelihood could be considerable, even a long time after the event.

Exceptions

Disclosures/admissions of commitment of acts of sexual violence against others

9.138There would be need to be a number of exceptions to confidentiality, firstly to enable reporting by the facilitator or provider of disclosures or admissions made in the context of the alternative process (including at the initial intake and risk assessment stage) where a risk to community safety or a current risk to the safety of a child or children was indicated.649

9.139Further thought would need to be given as to how this exception would be framed. One possibility may be to have a qualified exception to confidentiality to enable a facilitator to make a report to Police or Child, Youth and Family and for that agency or body to investigate. If an attempt were made to disclose that information in subsequent criminal proceedings, a judicial direction could be made under section 69 of the Evidence Act 2006 to prevent disclosure of the information.

Disclosure of record of completion

9.140We consider that there would also need to be a further exception to confidentiality so that a record of completion of the alternative process (see discussion below as to what this would contain) could be disclosed or used in certain circumstances as outlined below.

9.141First, disclosure of the record of completion should be made to Police when each perpetrator completes the alternative process. This would be to ensure that they did not prosecute the perpetrator in respect of the same incident of sexual violence.

9.142However, it should be noted that for particular perpetrators there would be significant implications of the Police having this information in their possession: if the perpetrator had committed an act of sexual violence against a child, an elderly person or an otherwise vulnerable person and then sought a paid or unpaid role with one of those groups, the Police would be able to disclose the record of completion to a prospective employer/organisation seeking the vet, in accordance with Police vetting procedures and/or various statutory obligations.650
9.143We acknowledge that this may be prejudicial to some perpetrators, but accords with the general direction of current government policy regarding protection of vulnerable children. A perpetrator in this position would therefore need to be made specifically aware of this prior to consenting to participate in the alternative process. The other option would be to limit when Police could use the record of completion.651

9.144There would also be an implication for all perpetrators, in that the record of completion may factor into future decisions of Police as to whether or not to prosecute a perpetrator for subsequent or other sexual violence.

9.145Second, if the perpetrator committed a further act of sexual violence, the Department of Corrections could be provided with a record of completion for the purposes of preparing a presentence report for the court or for considering matters related to parole.

9.146We discuss the need for a central registry and for the maintenance of records later in this chapter.

Recommendations

648However, if the victim then referred to statements made during the alternative justice process, these would need to be disregarded by Police and not used in any investigation or prosecution of the alleged offence. We do not consider, however, that a victim in that situation should be held criminally responsible for any such disclosures.
649Although there is no mandatory reporting of child abuse under the Children, Young Persons, and their Families Act 1989, the recent passing of the Vulnerable Children Act 2014 makes it clear that all government agencies working with children are required to have child protection policies which encourage reporting of child abuse. Given this policy direction, it would be out of step for disclosures of acts of sexual violence against children not to be able to be reported by providers to Child, Youth and Family or to Police.
650Education Act 1989, ss 78CB–78CD; Health & Safety in Employment Act 1992, ss 13B–13E; Vulnerable Children (Requirement for Safety Checks of Children’s Workers) Regulations 2015, reg 6.
651This would run counter to current government policy regarding vulnerable children. We do not anticipate that there would be any current acts of sexual violence dealt with in the alternative process that were committed against a child under the age of 12, although an alternative process may apply to historic acts of sexual violence committed against an adult victim when he or she was a child.