9.148We recommend that an amendment is made to the Evidence Act 2006 so that there is a privilege for the benefit of any perpetrator for any statements made, information given or communications between the perpetrator and any person involved in the delivery of the alternative process or any person participating in the alternative process.
9.149In order for there to be sufficient incentive for the perpetrator to participate in the alternative process, we consider privilege would attach regardless of whether the alternative process was completed.
9.150In our view, privilege in respect of statements made, information given and communications during the course of the alternative process should only be for the purpose of protecting the perpetrator against prejudice in any subsequent court proceedings in relation to the same incident against the same victim. As noted in the section on confidentiality, whilst there would be confidentiality for any admissions or disclosures during the alternative process regarding the perpetrator having committed other acts of sexual violence (against a person or people other than the victim) they would not be privileged. Therefore, a provider may report the disclosure to Police who could investigate those acts of sexual violence, but those disclosures would not be able to be automatically admitted in court in any subsequent proceedings brought by Police in relation to the other disclosed acts.
9.151As a perpetrator can only participate in the alternative process by accepting the sexual conduct in question occurred, the fact of participation itself could be prejudicial to the perpetrator as it may lead to subsequent criminal prosecution or be used in criminal proceedings.
9.152Therefore in order to encourage participation and to protect a perpetrator against self-incrimination we recommend the privilege noted in the above section should also cover the fact of participation in the alternative process.
9.153As noted in the section above, in order for there to be sufficient incentive for the perpetrator to participate in the alternative process, we consider privilege would attach regardless of whether the alternative process was completed.
9.154As noted in the introduction to this section, if a perpetrator committed further acts of sexual violence after participation in or completion of the alternative process, the protection of privilege would not continue. After receiving feedback and submissions on the point, we consider that the fact of participation in the alternative process, statements made during the alternative process, and the record of completion of the alternative process would, in principle, qualify as propensity evidence that could be offered to the court under section 40 of the Evidence Act 2006 in respect of any future prosecution for other sexual violence (not the sexual violence which gave rise to the alternative process). That is, the rules would be the same for these matters as for a criminal conviction or any prior criminal conduct.
9.156We acknowledge that this may act as a disincentive to some perpetrators wishing to participate in the alternative process. However as noted earlier, any perpetrator who was anticipating committing a further act of sexual violence at the time of embarking on the alternative process, or who had committed multiple acts of sexual violence, is unlikely to be suitable for the alternative process.