Part C: Alternatives to trial
assessment of cases entering the alternative process
- R31 A risk assessment framework should be developed specifically for the alternative process, with, at a minimum, input from the sexual and family violence sectors, forensic mental health/psychological experts, and researchers in the field.
- R32 Providers should apply the risk assessment framework to determine whether cases pose an unacceptable risk to community safety and should not proceed through the alternative process.
- R33 Cases where the public has a compelling interest in seeing conduct publicly denounced should be excluded from entry into the alternative process by way of a description set out in statute (the “public interest legislative descriptor test”). Such cases should include those where there are factors such as use of extreme physical violence, multiple perpetrators, and use of a weapon.
- R34 Providers should conduct the assessment of whether cases meet the public interest legislative descriptor test as part of conducting the risk assessment (see R 32).
- R35 Where sexual violence occurs within the context of intimate partner violence, and where the alternative process would put the victim at a risk of harm, those cases should be assessed as ineligible under the suitability assessment (see R 36).
- R36 Providers should conduct suitability assessments of individual cases to proceed through the alternative process. Such suitability assessments should consider the dynamics of the individual case, taking into account the matters outlined in Chapters 8 and 9 of this Report, and including an assessment of whether the perpetrator has the capacity to move to a point of acknowledging the harm caused to the victim by the act of sexual violence; to offer a genuine apology; and to make redress.
- R37 A new statute should be passed which sets out the guiding principles for the alternative process and the other matters covered in Chapters 8 and 9 of this Report.
- R38 A rigorous accreditation framework should be developed against which programmes can be assessed and which incorporates the key values and components described in paragraphs 9.32 to 9.45 of this Report, yet which is sufficiently flexible to allow the development of creative, safe, effective, and robust programmes.
- R39 The new statute (see R 37) should include a definition of “completion of a programme”, which should include the perpetrator fulfilling all “conditions” agreed to in an outcome agreement but should exclude any “undertakings” made by the perpetrator.
- R40 The programmes should be audited on a regular basis (perhaps twice a year).
- R41 Providers and facilitators should be specialists who are trained and experienced in working with sexual violence.
- R42 The accreditation framework against which programmes are assessed (see R 38) should also incorporate standards and competencies against which providers and facilitators can be assessed, accredited, and regularly monitored.
- R43 Providers and facilitators should be required to renew their accreditation every few years or (for providers) earlier if there are significant changes to the structural operation of the provider.
- R44 It should be a breach of the statute to deliver a programme unless the person or body is accredited and the programme and facilitators are accredited.
- R45 The statute should provide that the alternative process may be initiated only at the election of a victim of sexual violence.
- R46 The definition of “consent” to participate in an alternative process should be provided for in the statute as set out in paragraph 9.90.
- R47 The statute should set out the eligibility criteria for both victims and perpetrators to participate in the alternative process as set out in paragraphs 9.88 to 9.102.
- R48 Consideration should be given to whether one of the possible outcomes of an “intention to charge” family group conference would be for the young offender and victim to engage in an alternative process on the basis that this is desired by the victim; that both participants are otherwise assessed as suitable and safe to participate; and that specialists skilled in youth offending and sexual violence are involved in both processes.
- R49 The matters to be considered by providers when conducting a suitability assessment (see R 36) and how a provider should apply the risk assessment framework (see R 32) should be set out in guidelines/good practice standards.
- R50 Training should be given to providers to conduct suitability assessments (R 36) and to apply the risk assessment framework (R 32).
review and protections
- R51 The function of reviewing the decisions of providers in applying the risk assessment framework (including decisions to suspend or cease provision of programmes) should be conducted by an independent review panel.
- R52 The statute should set out the grounds for review of risk assessment decisions of providers.
- R53 Policies and procedures should be developed to guide the panel in carrying out reviews.
- R54 The panel should have a statutory power to confirm a decision or refer it back to the provider with a direction to reconsider.
- R55 The statute should make it clear that:
- the alternative process is voluntary for both the victim and perpetrator; and
- the victim and perpetrator may withdraw from the alternative process at any time prior to the completion of the process; and
- withdrawal from the process prior to completion will not affect the right of the victim to make a complaint to Police about the incident of sexual violence.
- R56 Legal aid should be extended to victims and perpetrators who participate in the alternative process where they would otherwise be eligible for legal aid in accordance with the income and asset tests set out in relevant legislation.
- R57 The statute should provide that statements and communications made during the alternative process are confidential, with a breach made a punishable offence, with the exception that the record of a completed alternative process may be disclosed to Police and the Department of Corrections as described in Chapter 9 of this Report.
- R58 Further thought should be given to an exception to confidentiality to enable the provider to advise Police or Child, Youth and Family of any disclosures made by the perpetrator in the course of the alternative process regarding acts of sexual violence committed against others.
- R59 Confidentiality obligations should allow a victim to have support and work through issues arising from participation in the alternative process but should prohibit publication of any facts that would lead to disclosure of the perpetrator’s participation in the alternative process.
- R60 The Evidence Act 2006 should be amended as outlined in paragraphs 9.147 to 9.153 of this Report to provide a privilege for the benefit of any perpetrator for participation in the alternative process and for statements made, information given, or communications between the perpetrator and any other person during that process, including any person involved in the delivery of the process. There should be an exception for propensity evidence as outlined in paragraphs 9.154 to 9.156.
- R61 The Evidence Act 2006 should be amended to provide a privilege to victims in respect of participation in the alternative process and for statements made, information given, or communications between the victim and any other person during that process, including any person involved in the delivery of the process.
- R62 The statute should provide that where a perpetrator participates in and completes the alternative process, there is a bar against subsequent prosecution of the perpetrator for the same incident of sexual violence against the same victim, except in the instances noted in paragraph 9.162 of this Report.
- R63 A central register should be maintained of those who have completed the alternative process.
- R64 Guidelines or practice standards for the alternative process should be created in consultation with the sector, covering the topics outlined in Chapter 9 and Appendix D of this Report.
- R65 Providers and facilitators should be periodically monitored and programmes should be periodically audited.
- R66 Outcome agreements should be periodically monitored.
- R67 Capacity should be built in the sector; training and support should be provided for providers and facilitators seeking accreditation; and the need for alternative process programmes should be identified and those programmes developed in underserviced geographic or demographic areas.
- R68 Records of the assessment decisions of a provider should be maintained in a central register (see R 63).
- R69 The statute should provide that information may only be released from the central register in the form of a “record of completion” in the situations noted at paragraphs 9.140 to 9.145 of this Report.
oversight functions and body
- R70 The commission recommended in Part D of this Report should perform the oversight functions described in paragraphs 9.173 to 9.192 of this Report.
- R71 The commission should be structured in such a way that its function of overseeing alternative processes is conducted independently of its other functions.
- R72 If R 70 is not accepted, the oversight functions in Chapter 9 of this Report should be performed by the Ministry of Justice, except for the function of maintaining records and a central registry, which should be performed by the newly-established independent review panel (see R 51).
- R73 The alternative process should first be implemented as a pilot programme which is monitored and evaluated and necessary changes made before it is rolled out further.