Contents

Chapter 9
Proposal for reform

Introduction

9.1This chapter sets out in detail our reform proposal for an alternative justice mechanism, which we call the “alternative process”, to deal with cases of sexual violence.

9.2Our proposed reform is based on the Law Commission’s 2012 Issues Paper587 and informed by From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand588 and by subsequent submissions, consultation with key stakeholders and by recent literature and reports concerning the use of restorative justice in sexual violence cases.
9.3We have also drawn to some degree on the 2014 report of the Melbourne Centre for Innovative Justice (based at RMIT University) on the use of innovative justice processes to deal with sexual violence.589 A significant part of the 2014 report deals with introducing restorative justice conferencing for sexual violence, including at a pre-court stage.590

9.4For the purpose of clarity, in this chapter we will refer to our proposal as the “alternative process”. As part of the alternative process there will be “alternative programmes”, but we use the broader term of “alternative process” to refer to the whole process, covering the initial approach to a provider to be accepted into a programme; the provider’s assessment of the victim and perpetrator (including any review of that assessment); and participation in, and completion of, the programme.

587Law Commission Alternative Pre-trial and Trial Processes (NZLC IP30, 2012).
588Elisabeth McDonald and Yvette Tinsley (eds) From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, 2011).
589Centre for Innovative Justice Innovative justice responses to sexual offending - pathways to better outcomes for victims, offenders and the community (2014) at 6. As far as we are aware there have not yet been any plans to implement the proposal set out in the Centre for Innovative Justice’s report.
590However, the key difference between what we are proposing and the Centre for Innovative Justice model is that under the latter model the option to bring criminal proceedings would still be open to victims, whereas under the model we are proposing if the alternative process was completed there would be a statutory bar against bringing proceedings against the perpetrator in respect of the same incident of sexual violence committed against the same victim.