Contents

Chapter 9
Proposal for reform

Protections regarding participation in the alternative process

9.125As the law currently stands, the victim and/or the perpetrator could suffer prejudicial or negative effects through engaging in the alternative process. For example, statements that a perpetrator makes during the process could be used to initiate subsequent legal proceedings against him or her, or a victim could have their statements used to discredit their testimony in any subsequent criminal proceedings brought against the perpetrator. We now go on to outline proposed protections to address these risks.

9.126We envisage that some of the protections in favour of the perpetrator will only be available in respect of the incident of sexual violence giving rise to the alternative process. Therefore if the perpetrator was to commit a further act of sexual violence after completion of the alternative process those protections may not apply, or not in their entirety. The effect of having only partial protections may, for a perpetrator, act as a disincentive to participating in the alternative process. However, in our view, any perpetrator who is anticipating committing a further act of sexual violence at the time of embarking on the alternative process may not be suitable for the alternative process in any event.

Voluntary

9.127The alternative process is voluntary, which protects both the perpetrator and the victim, although in different ways and to different extents. For instance, the perpetrator is protected from jeopardy, in so far as he or she is not compelled to participate and can withdraw at any time. The victim is protected in so far as he or she, too, can withdraw at any time and still retain the right to make a complaint to Police about the incident of sexual violence. These protections will need to be set out in legislation.

9.128It does need to be acknowledged that the balance of control of the alternative process is in favour of the victim, as the perpetrator has a stronger incentive to participate, given that completion of the alternative process precludes criminal prosecution. It has been acknowledged that, in this sense, “true choice for offenders may be illusory”.646 However, in our view this “incentivising” of perpetrator participation is not objectionable, due to the existence of other protections which we outline below: privilege of statements made during the alternative process and confidentiality of disclosures made during participation in the alternative process.

9.129As set out in the section regarding eligibility to participate in the alternative process, the victim and perpetrator must consent to participate. The test for consent should be set out in legislation and the provider will have a role in confirming the consent of the victim and perpetrator.

Legal adviceTop

9.130In order to freely consent to participate in the alternative process both the victim and perpetrator will need to be aware of the legal implications of participation and how this will affect their rights in relation to the criminal justice system. For instance the victim and perpetrator will need to be advised that a completed programme will be a bar to criminal prosecution and understand the implications of that for their respective positions; that privilege and confidentiality will apply to participation and discussions and the effect of this; what privilege does and does not cover;647 and when information may be released and to whom relating to completion of the alternative process.

9.131In our view in order for the victim and perpetrator to fully understand all the legal implications of participation in the alternative process, they will need access to legal advice. We therefore recommend that the victim and the perpetrator should be advised of the desirability of taking legal advice prior to participation in the alternative process and prior to signing any outcome agreement reached during the programme.

9.132To enable access to legal advice for victims and perpetrators who wish to participate in the alternative process, we recommend that legal aid should be extended in order to cover the alternative process.

Recommendations

646McDonald and Tinsley “Rejecting ‘one size fits all’: Recommending a range of responses” in McDonald and Tinsley (eds), above n 588, 377 at 417.
647See the discussion below on legislative protections for participants. For instance, a perpetrator may freely admit to committing an act of sexual violence within the context of the alternative process, but (if the process were to break down), in any subsequent criminal proceedings may deny any wrongdoing. This may be emotionally harmful for the victim and he or she should be forewarned of this possibility before engaging in the alternative process.