Contents

Chapter 9
Proposal for reform

Eligibility for participation in the alternative process

Victim eligibility criteria

9.88Any victim who has experienced sexual violence should be able to elect to participate in the alternative process (with the exception of cases that meet the “public interest legislative descriptor”, see Chapter 8) as long as the victim meets a list of initial eligibility criteria to be set out in legislation.628

9.89In the case of victims the criteria should be that:

Consent629

9.90A definition of “consent” will need to be set out in legislation. In our view, in this context consent to participate should be defined as the victim:

9.91It would be the responsibility of the provider to assess and confirm the eligibility of the victim to participate, including obtaining their written consent.

Age restriction633

9.92In the interests of legal certainty, we consider that it is appropriate for the minimum age of eligibility to participate (as an adult) to be 16 years.

9.93We also consider it appropriate that some young people under the age of 16 years should be eligible to participate in the alternative process. Determining a lower age limit is difficult and also somewhat arbitrary, as children develop differently. However, 12 years of age is a significant developmental point for children and some will be undergoing puberty and becoming sexually active, and therefore this may be an appropriate age.

9.94We have been advised during consultation that for this age group it is crucial:

9.95We therefore consider that victims between the age of approximately 12 years and 16 years should be eligible to participate in the alternative process and recommend that rather than setting a lower age, the guidelines/good practice standards should provide guidance for a provider in making that decision. There should, however, be some criteria set out in legislation that a provider must consider in assessing the suitability of the victim to participate in the alternative process, namely:

Perpetrator eligibility criteriaTop

9.96We recommend that the following eligibility criteria apply to perpetrators. The perpetrator:

Choice to participate635

9.97In respect of an adult perpetrator, it is an accepted principle of restorative justice that the victim and perpetrator engage on a voluntary basis. Similarly in our view it is much more likely to result in a positive outcome for the victim and perpetrator, and perhaps also the public, if a perpetrator consents to participate in the alternative process and is fully engaged (albeit only after the initial election of the victim), rather than being coerced into participation.636

Acknowledgement of the act and willingness to address

9.98Second, the perpetrator needs to acknowledge that he or she committed the act of sexual violence complained of, or at a minimum, that a sexual encounter occurred. As the alternative process is not a fact-finding process, for it to be of any benefit or any progress to be made there needs to be some level of responsibility and acknowledgement. This 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 victim as a consequence.

9.99The perpetrator also needs to be willing and prepared to address the causes of his or her behaviour that led to the act of sexual violence – such as education on sexual communication or if appropriate assessment for a treatment programme or a programme to address alcohol use.

9.100As noted below the perpetrator will subsequently be assessed as to whether he or she has the capacity, during the course of the programme, to move beyond acknowledgement of the act, to a point of accepting responsibility for the harm caused.

Age restriction637

9.101The considerations relevant to setting the minimum age for perpetrators to participate in an alternative process should be similar to those outlined in respect of the victim,638 but with allowance for the current legislative provisions addressing the age at which a child can be prosecuted or convicted of a crime.639 In light of relevant provisions, and as discussed further in Appendix C, we consider that 12 years as a minimum age would appear to be appropriate for participation. However, in our view, a young person between the ages of 12 and 16 would need the consent of his or her guardian or adult nominee to participate in the alternative process.

9.102Although there will be different considerations for young people who are perpetrators to those who are victims, we believe it would still be appropriate for providers to carry out an assessment of perpetrators aged over 12 and under 16 years, to ensure they consent to participating, have the capacity and maturity to participate, acknowledge responsibility for the sexual act and have parental or adult consent and support.

Overlap with youth justice

9.103There is the potential for a positive overlap with the system of youth justice under the Children, Young Persons, and Their Families Act 1989. Some concern was expressed to us during consultation that victims of sexual violence, particularly victims who are young people, do not fare well in the family group conferencing process under the justice model; particularly, that there is a lack of preparation and support for the meeting between the victim and young offender. Auckland Sexual Abuse HELP submitted:640

Children and young people are left emotionally unsafe in these processes which fail to protect them as victims through the lack of acknowledgement of what it means to be a victim of sexual abuse, the informality of the conference process which fails to protect them from the person who has caused them sexual harm, and the focus on the safety and well-being of the person who has caused the harm which seems to often occur at the victim’s expense. Being a 7 year old who has been sexually violated by your 14 year old baby-sitter is no less traumatising than being an adult woman sexually violated by an acquaintance.

9.104In our view where an “intention to charge” family group conference is convened in respect of a young person aged 12 or older who has committed an act of sexual violence,641 consideration could be given to whether one of the possible outcomes of that conference is for the perpetrator who acknowledges responsibility for the act of sexual violence to further participate in the alternative process. This would only be the case, however, if that is desired by the victim, and both participants are otherwise assessed as suitable and safe to participate.

9.105Given that the focus of the legislation and the family group conference model is on youth offenders, this would need to be managed carefully to ensure that the youth justice process and its focus on prevention of youth reoffending is not undermined. There would need to be specialists involved in both processes, who understand both the dynamics of sexual violence and youth justice offending and who can ensure the welfare and needs of the perpetrators and victims respectively are considered.

ChildrenTop

9.106As discussed above, we consider that the appropriate minimum age for participation in the alternative process is 12 years old for perpetrators and approximately 12 years old for victims. We do not believe that, generally speaking, it would be appropriate for children younger than 12 years old to go through the alternative process or for parents to go through the process on their behalf, as this would then preclude that child being able to have his or her own justice needs met, either through the alternative process when old enough to participate, or through the criminal justice system (as, under our model, if the perpetrator completed the alternative process in respect of the incident of sexual violence then it could not go back through the criminal justice process).

9.107For further discussion on this point and our consideration of whether parents could go through the process on behalf of children see Appendix C.

recommendations

628However as we go on to discuss, although a victim may pass the initial eligibility test, the subsequent assessments or other factors may mean the case cannot continue in the alternative process.
629For more detailed discussion see Appendix C.
630Such as a welfare or property order under the Protection of Personal and Property Rights Act 1988.
631See discussion on legal advice in the section on protections later in this chapter.
632For instance, a victim would need to understand that if the alternative process is completed, a perpetrator will not be able to be prosecuted in respect to the same incident of sexual violence against her or him. See further discussion below.
633For more detailed discussion see Appendix C.
634This based on the “Gillick” competency test for minors – that children are individuals who grow in intelligence, competence and autonomy as they move towards adulthood and therefore a child has legal competence in making decisions, provided that she or he has sufficient understanding and intelligence to enable full understanding of what is proposed: Gillick v West Norfork and Wisbech Area Health Authority [1986] AC 112 (HL). See also Chantelle Murley “Does the Gillick Competency Test Apply in New Zealand, Given the Special Nature of Sexual Health Care Services?” (2013) 1 Public Interest Law Journal of New Zealand 92.
635For more detailed discussion see Appendix C.
636We accept, as various commentators have pointed out, that participation may be “relatively voluntary”, in the sense that there is a strong incentive to participate given that the criminal justice route may lead to incarceration. McDonald and Tinsley “Rejecting ‘one size fits all’: Recommending a range of responses” in McDonald and Tinsley (eds), above n 588, 377 at 417 (referencing Anne McAlinden “The use of shame with sexual offenders” (2005) 45 British Journal of Criminology 373 at 373) and at 425 (referencing Bernd-Dieter Meier “Restorative justice – A New Paradigm in Criminal Law?” (1998) 6 Eur J Crime Cr L Cr J 125 at 134).
637For more detailed discussion see Appendix C.
638In Appendix C, we elaborate on the relevant considerations in proposing a minimum age for victims.
639Section 21 of the Crimes Act 1961 provides that children under 10 cannot be convicted of any offence. Section 272 of the Children, Young Persons, and their Families Act 1989 provides that children of 10 years and over can be prosecuted for murder and manslaughter and that children aged 12 and 13 years can be prosecuted in the Youth Court for serious and/or persistent offending (including sexual offending).
640Submission from Auckland Sexual Abuse HELP to Law Commission on Issues Paper (April 2012) at 23.
641See the discussion in Chapter 7 on the youth justice system and family group conferences.