Chapter 1
Scope, approach, and context of this review


1.1The Law Commission has been asked to consider whether the criminal trial process as it applies to cases of sexual violence should be modified or fundamentally changed, in order to improve the system’s fairness, effectiveness and efficiency and, in particular, “the court experience of complainants”.4
1.2It is generally accepted that the number of acts of sexual violence reported to Police does not reflect the actual prevalence of sexual violence in the community.5 Previous reviews have also established that many victims of sexual violence have a negative experience in or perception of the criminal justice system.6 Both these things have been confirmed by the research and consultation process undertaken in this review.
1.3The recommendations in this Report seek to reduce the risk of re-traumatisation of those who go through the criminal justice system by proposing a number of reforms to criminal trial processes as they apply in cases of sexual violence. (For reasons explained below, we do not look at the Police investigation or prosecutorial decision-making stage). The Report also recommends the establishment of an alternative, non-criminal process, so that victims7 of sexual violence have greater choice in the form of redress they seek. Finally, it suggests ways to better meet the support and service needs of victims, on the basis that meeting those needs puts victims in a better position to report acts of sexual violence.

1.4The focus of this Report is on the processes that apply to sexual violence within the criminal justice system. It does not examine the substance of the offences of sexual violence that are currently on the statute book or substantive legal rules such as the definition of consent.

1.5It seems generally accepted among consultees that the custodial presumption in section 128B(2) of the Crimes Act 19618 and the high sentencing tariffs that attach to sexual violence offences are a contributing factor to under-reporting (the offence of sexual violation/rape carries a maximum sentence of 20 years’ imprisonment, with six to eight years the recommended starting point for offending at the lower end of the spectrum).9 These factors also mean perpetrators have a strong incentive to aggressively defend a charge rather than to admit it. This Report does not consider a change to the custodial presumption or propose amending the maximum penalties that attach to sexual violence offences or guidelines for their imposition. However, a review of these factors could be warranted in the future in order to address these issues.

1.6We also note that our recommendation for an alternative process for dealing with sexual violence would sit outside of the criminal trial process and would not lead to a conviction or criminalisation. It may, therefore, address some of the concerns about the drawbacks of the current high penalties for sexual violence offences.

4Letter from Amy Adams (Minister of Justice) to Grant Hammond (President of Law Commission) regarding revised Law Commission work programme 2014/15 (24 November 2014). The terms of reference for this review were first received in 2010 and an Issues Paper published in 2012. The review was then put on hold. Subsequently, it was revived, and the terms of reference have not changed, although the matters covered in this Report differ from the scope and nature of the proposals put forth in the Issues Paper. For the full terms of reference and discussion of the prior history of this review, see below.
5See Chapter 2.
6See Venezia Kingi and Jan Jordan Responding to sexual violence: Pathways to recovery (Ministry of Women’s Affairs, 2009) at ch 7; Elaine Mossman and others Responding to sexual violence: Environmental scan of New Zealand agencies (Ministry of Women’s Affairs, 2009) at ch 8; advice to the Law Commission from Dr Linda Beckett (June 2015), on file with the Law Commission; and Law Commission Alternative Pre-trial and Trial Processes: Summary of Submissions to Consultation (NZLC, 2012).
7We discuss our use of the term “victim” in this Report below.
8Section 128B(2), which is sometimes referred to as a “custodial presumption”, states that a person convicted of the offence of sexual violation must be sentenced to imprisonment unless the court thinks the person should not be, having regard to the particular circumstances of the person convicted and the particular circumstances of the offence, including the nature of the conduct constituting it.
9R v AM [2010] NZCA 114 at [93].