Sexual violence is a blight on New Zealand society. It has serious effects on victims and for society at large.
It is also marked by a distinct concern for the rule of law. As a potential offence, it is badly under reported. In the view of some, as much as 80 per cent of offences go unreported.
This latter characteristic is a matter of the greatest concern for the formal criminal justice system. Whatever the figure is – and no-one doubts it is a high percentage – a significant number of complainants are “opting out” of the very system that is supposed to recognise their rights and support their needs. They are doing so largely because they perceive the formal criminal justice system to be alienating, traumatising, and unresponsive to their legitimate concerns.
The fundamental task for the Law Commission in this Report has been to assess and make recommendations on how the position of complainants might be improved, but without compromising the trial rights of defendants. It has to be said that this is no easy task. Indeed, it is one of the more challenging law reform exercises that can be posed today.
The Commission is of the view that useful improvements can and should be made to the existing formal system, and we have addressed these in our Report. The Commission has however also reached the view that incremental change, which has been struggling forward over the last three decades, will not bring about the desired result of bringing these complainants within the formal justice system or satisfying their legitimate needs.
First, we consider that a specialist sexual violence court, however formally constituted, is required, and potentially as a division of the District Court.
Second, the hard fact of the matter, as so many of our consultees put to us, is that an alternative system outside the present criminal justice system is also required. Sir Owen Woodhouse once said of the then workers’ compensation regime that we could fix some things, but the workers’ compensation system would still leave many disenfranchised. So it is with this subject area. We have therefore in this Report gone further and explored what such an alternative system might look like. The aim is certainly not to displace the criminal justice system. Indeed, it is to be hoped that the system will be improved with the reforms we have recommended. But real innovation is required.
Third, better support systems are required for victims, and we have made suggestions under this heading.
Finally, this exercise merits repeating the wise words of Sir Owen 50 years ago: “… [i]f there may seem to be a weight of tradition against change, at least it is worth remembering that the apparent heresies of one generation become the orthodoxies of the next. The ultimate validity of any social measure will depend not upon its antecedents but upon its current and future utility.”*
Sir Grant Hammond