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.
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.
9.129As 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.
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.