Contents

Chapter 9
Proposal for reform

Key components of programmes

9.34As discussed above, there will be flexibility for programmes to differ from each other. We expect there will be key components, but their inclusion may vary depending on the programme.602

Preparation

9.35Time spent with the victim and perpetrator preparing them for meeting is an extremely important part of the process. Preparation time with the victim provides support and validation; establishes what the victim’s justice needs are and how the process will be delivered (where, when, who is to be at a meeting or whether there should even be a meeting); and prepares them for what the perpetrator might say. In some programmes, this will be the main or only step if the victim does not go on to meet the perpetrator.

9.36Preparation time with the perpetrator can challenge a perpetrator’s understanding and acknowledgement of his or her behaviour, open the perpetrator’s eyes to understand the harm caused and have him or her consider what redress to offer.

MeetingTop

9.37This may be a facilitated conference, whānau meeting, or a series of meetings. Alternatively the meeting may involve a letter or some other communication from the victim, but should involve the perpetrator and the perpetrator’s community of support and accountability – unless the meeting is between the victim and his or her family/whānau.

9.38At the meeting the victim and perpetrator (or victim and his or her family/whānau) are to be brought together in a safe way to address the incident of sexual violence, perhaps through the victim telling his or her story and detailing the harm caused, and with the perpetrator accepting responsibility and acknowledging the harm. A family/whānau member may acknowledge the harm that occurred, affirm the victim’s story and apologise for not previously believing a victim, or apologise for their role in the abuse.

Outcome agreementTop

9.39When the victim and perpetrator both participate in an alternative process, they may wish to draw up an outcome agreement in order to specify the redress the perpetrator will make to the victim. The outcome will depend on the victim and perpetrator involved and on the provider’s expert views as to what is appropriate in the circumstances. In order to be workable, the agreed outcomes would need to be specific, measurable, achievable, and able to be monitored, as well as broadly proportionate.603 It may be helpful for anticipated dates of completion of terms (if relevant) to be included. Parameters and guidance on appropriate outcomes would need to be included in guidelines/good practice standards (see Appendix D).

9.40Possible outcomes might include:

9.41We are aware that some outcome agreements reached in pre-court or community referral sexual offending restorative justice conferences involve ongoing commitments – such as for a perpetrator not to have contact with children.604 However, for the purposes of the alternative process, a condition of this sort would present difficulties as it cannot be easily monitored, nor would it be achievable within a certain time frame given its perpetual nature. This in turn has implications for the bar on prosecution – as a completed process is a bar on prosecution but the alternative process cannot be completed if the conditions are unable to be fulfilled. Therefore an agreement needs to consist of a set of conditions which are quantifiable and can be completed within a certain timeframe.
9.42We would be reluctant to recommend that such terms ought not to be permissible in an outcome agreement and therefore consider that there could be ongoing terms which would be “undertakings” made by the perpetrator,605 but would not be “conditions” of the agreement. There would need to be a distinction between “conditions” and “undertakings” in the agreement.

Monitoring of agreementTop

9.43The provider would be responsible for monitoring the perpetrator’s compliance with the conditions agreed to in the outcome agreements and for providing any necessary assistance towards fulfilling the terms. This will require being in contact with the perpetrator and encouraging him or her in fulfilling the terms, but not being given any specific additional powers to ensure compliance. Guidelines/good practice standards will need to provide guidance for providers in this regard.

Completion of processTop

9.44Once the conditions of the outcome agreement have been fulfilled, the alternative process will be deemed to be completed. There may be a meeting (which the complainant could choose whether or not to attend) or some other process to acknowledge the completion of the agreement and provide some closure. The provider will keep a record of the fact of completion and notify the appropriate bodies (discussed later in this chapter). A definition of “completion” will need to be set out in legislation.

Non-completion of processTop

9.45Non-compliance or failure to fulfil all the conditions of the outcome agreement will result in the alternative process not being completed. The victim would have the option to make a complaint to Police about the incident of sexual violence.606 We discuss the additional implications for both the victim and perpetrator later in this chapter.
602See Project Restore Restorative Justice for Sexual Violence: Principles of good practice (Project Restore NZ, 2010); Ministry of Justice Restorative Justice in New Zealand - Best Practice (2004); and Centre for Innovative Justice Innovative justice responses to sexual offending - pathways to better outcomes for victims, offenders and the community (Centre for Innovative Justice, 2014).
603Sometimes the acronym “SMART” is used is to describe outcomes that are specific, measurable, achievable, results-focused, time-oriented. Outcomes would also need to be broadly proportionate, as perpetrators may offer something extreme in the intensity of the meeting, but then be advised against it or renege. It would not be beneficial for complainants if the perpetrator reneged, and therefore it is better for the agreement to be realistic.
604Meeting between Project Restore and the Law Commission (19 October 2015).
605These would not be “undertakings” in the sense that they could be sued upon.
606Whether or not Police would then file a charge against the alleged offender would be subject to Police discretion and depend on there being, for instance, sufficient evidence.