Contents

Chapter 9
Proposal for reform

Record of completion

9.166The effect of participating in the alternative process is that the incident of sexual violence would not be noted on the perpetrator’s criminal record, as it would have been dealt with outside of the formal criminal justice system, without any criminal charges being laid. Nor would the perpetrator’s name be included on any sex offender register, for instance, and it would not affect a perpetrator’s career or travel prospects.

9.167We have therefore considered whether there should be any record or a register kept of participation in an alternative justice process that would link the victim, the perpetrator, the sexual violence committed and the perpetrator’s acknowledgement of responsibility for the incident of sexual violence; and whether this record should be publicly available.

9.168In the same way that providing protections as to confidentiality and a bar to criminal prosecution provide an incentive to participate in an alternative justice process, so would the absence of a record of participation. Without this protection as part of the “package” of incentives, the other statutory protections and incentives for perpetrator involvement may be insufficient. In this regard we note that the Centre for Innovative Justice report concluded that perpetrators would be unlikely to agree to be involved if their participation was recorded, as this would be weighed up against the fact that there would be no consequences if the offence remained unreported and unprosecuted.659

9.169Those we consulted were divided on this point. Some felt there needed to be some sort of record available in order to protect the public, although at the same time acknowledging that keeping no records would provide an incentive to perpetrator participation. Others were clear that a whole package of incentives (for instance no record of participation, the privilege for participation in the alternative process, and a statutory bar against prosecution) would be needed.

9.170We have also weighed up the possible risk to community safety if a perpetrator was not noted as a sexual offender on a publicly available record or register. We consider that the fact that the Police would be given a record of completion and would be able to disclose this to anybody considering employing, in a paid or unpaid role, a perpetrator who had committed sexual violence against a child, an elderly person or any other vulnerable person, will be sufficient protection in most instances.

9.171We have concluded that there should not be a public record or public register of those who have gone through the alternative process. However, in our view there should be a central register of those who have completed the alternative process, but this would not be public. Information from the central register of those perpetrators who have completed the alternative process (“record of completion”) should be disclosed in certain limited circumstances, as was outlined above in the section on exceptions to confidentiality.

9.172We now go on to discuss the oversight functions that need to be performed in relation to the alternative process, including that of maintaining a central register of records.

Recommendation

659Centre for Innovative Justice, above n 589, at 68-69.