Chapter 1
Scope, approach, and context of this review

The fundamental problem

1.7In this Report, we use the term “sexual violence” as a broad descriptor of all unwanted acts of a sexual nature perpetrated by one or more person(s) against another.10 (We use the term “sexual offence” or “sexual offending” only with reference to an act or acts of sexual violence for which there has been a trial and/or conviction).
1.8Sexual violence occurs in a number of contexts. It is often committed by someone who is known to the victim, whether a family member, an intimate partner, a friend or a recent acquaintance (see Chapter 2). In all its forms, however, it has certain defining characteristics that distinguish it from many other forms of criminal offending.11 The fundamental problem, in our view, is that the criminal justice system by and large fails to take account of those distinguishing characteristics. Change is required if victims are to feel in a position to report acts of sexual violence. What that change should be, and what is possible now and what needs to be looked at further in the future, is the subject of this Report.

What distinguishes sexual violence?

It usually occurs in private

1.9Sexual violence usually occurs in private and without witnesses besides the victim. It can also occur without evidence of physical force or harm. The evidence that is required to prove criminality to the required standard of beyond reasonable doubt is more difficult to establish, unless the acts in question conform to the “real rape” stereotype, which is an act of rape involving a stranger, use of a weapon and evidence of violence (see further below). Most acts of sexual violence do not conform to that stereotype.

It breaches intimate physical and psychological boundaries

1.10Sexual violence is a form of offending that breaches a victim’s most intimate physical (and psychological) boundaries. This has a number of consequences, including less willingness of victims to report it to someone they do not know, such as Police, especially since to obtain the requisite evidence to establish criminal offending beyond reasonable doubt, the victim must go through a medical examination and questioning on the intimate details of the acts alleged.

1.11In the process of investigating allegations of family violence, sexual violence may be overlooked because the victim does not raise it, because it is difficult for Police to ask about it without having first established a measure of trust and because it is more difficult to establish in court than forms of violence that leave physical evidence.

The relationship between perpetrators and victims

1.12Most perpetrators of sexual violence are known to their victim and many are in a personal or family relationship with their victim. The victim may be reliant on the perpetrator for social or economic support. The victim may not want the perpetrator to go to jail for a lengthy period. However, at the end of the criminal trial process, the outcome for the defendant is either conviction or acquittal. If the outcome is a conviction, the likely result is a term of lengthy imprisonment. If the outcome is an acquittal, there are very few other options for a victim to seek justice in a form that can sit alongside the need or desire, if any, to have ongoing contact with the defendant.

The psychological impact of sexual violence and the absence of a “typical” victim response

1.13The psychological impacts of sexual violence on its victims can include depression, denial, phobic reactions and intrusive thoughts about the event.12 A victim of this form of violence is less likely to be willing to engage with a system in which their credibility and, potentially, sexual history with the defendant and others will be scrutinised and challenged in a public setting in front of 12 jurors. Some victims of sexual violence experience shame and guilt responses, which will also make them less willing to go through a trial experience of this kind.13
1.14In addition, as noted in research summarised by Koss:14

Because most rape victims know their perpetrator and the act is an intimate bodily invasion, sexual violence is a more severe violation of personal trust than other crimes such as burglary even though both transgress the boundaries of private, personal spaces.

1.15A related point is that, although sexual violence can have a number of distinctive impacts on its victims, there is no “typical” victim response. Victims may behave in one of many different ways to cope with the psychological impact of offending both at the time of the incident and afterwards. Some of these may appear counter-intuitive, yet they are established by research to be common responses. When tested at trial, however, the diverse and sometimes counter-intuitive nature of victims’ responses may appear to be, or may be presented as, evidence that an incident of sexual violence did not occur.

The distinct justice needs of sexual violence victims

1.16The particular psychological impacts of sexual violence can give rise to needs that are identifiably distinct in terms of what victims of sexual violence seek from the justice system when they make a complaint.

1.17We draw upon the concept of “justice needs” in this Report. This refers to the idea that victims of sexual violence have justice needs/interests and that these needs/interests are unique to them as victims of sexual violence.15 This concept of “justice needs” is one measure for assessing ways in which the criminal justice system response can be improved to the benefit of victims, both in respect of trial and in respect of the alternative process covered in Part C.

1.18We explore these “justice needs” further in Part C, but by way of example, victims of sexual violence in particular may be more likely to need a sense of participation in the process of seeking justice. That and many of the other “justice needs” of victims of sexual violence often run counter to the role played by victims at trial, in which they are largely relegated to the role of primary witness to the offending upon whose evidence much of the success of the case rests.

Cultural conceptions about sexual violence

1.19Sexual violence is frequently associated with beliefs and ideas that are based either in moral judgements about how people (especially women) should and should not behave or that are based in ideas about the perpetration of sexual violence that do not reflect reality. Globally, these are sometimes referred to as “rape myths”. Kelly, Lovett and Regan in their 2005 study of attrition in rape cases describe these as “powerful stereotypes that function to limit the definition of what counts as ‘real rape’, in terms of the contexts and relationships within which sex without consent takes place”.16

1.20A set of powerful cultural conceptions are associated, for instance, with the expected response of a victim to sexual violence. This is for a victim to physically resist or struggle, yell to draw the attention of others, immediately cut all contact with the perpetrator and report the sexual violence directly. Many people who experience sexual violence, however, may not call attention to it at the time. They may freeze out of shock or as a form of self-protection. Some victims report not wishing to cause a scene. They may not report the incident of sexual violence until some time after the fact or may not recognise it or identify it as an act of sexual violence.

1.21The term “real rape” is sometimes used to describe the “typical” rape scenario that most people associate with rape. It is likely to involve an attack by a stranger on an unsuspecting victim, with the use of threat or force by the assailant and active physical resistance by the victim.17 However, research shows that the majority of sexual violence is committed by men who are known to the victim either as a date or recent acquaintance, a friend or a partner.18 Also, much sexual violence involves a series of assaults over many years by one perpetrator against the same or victim or victims.19 A 2009 report by the Ministry of Women’s Affairs sets out the common characteristics and dynamics of sexual violence and how this often diverges from the commonly held or stereotypical view of “real rape”.20

1.22These cultural conceptions are unique to sexual violence as a form of criminal offending. To the extent that they have an impact on the fact-finder in a criminal trial, they are likely to affect whether the fact-finder finds the complainant, and the circumstances in which the sexual violence is alleged to have occurred, credible.

10See also the definition of sexual violence in Elaine Mossman and others, above n 6, at 5.
11See also Te Toiora Mata Tauherenga – Report of the Taskforce for Action on Sexual Violence, Incorporating Views of Te Ohaakii a Hine – National Network Ending Sexual Violence Together (Ministry of Justice, 2009) at 55–57.
12Advice to the Law Commission from Dr Linda Beckett (June 2015), on file with the Law Commission.
13Project Restore Restorative Justice for Sexual Violence: Principles of good practice (Project Restore NZ, 2010) at 4.
14Mary Koss “Chapter 10: Restorative Justice for Acquaintance Rape and Misdemeanor Sex Crimes” in James Ptacek (ed) Restorative Justice and Violence Against Women (Oxford University Press, Oxford, 2009) 218 at 221.
15Kathleen Daly “Reconceptualizing sexual victimization and justice” in Inge Vanfraechem, Antony Pemberton and Felix Mukwiza Ndahinda (eds) Justice for Victims (Routledge, Abingdon, 2014).
16Liz Kelly, Jo Lovett and Linda Regan A gap or a chasm? Attrition in reported rape cases (Home Office Research Study, United Kingdom, 2005) at 2.
17Kelly, Lovett and Regan, above n 16, at 2 and Jennifer Temkin and Barbara Krahé Sexual Assault and the Justice Gap: A Question of Attitude (Hart Publishing, Oxford, 2008) at 31–33. See Susan Estrich “Rape” (1986) 95 Yale LJ 1087 at 1088 and 1092 for an early definition of “real rape”.
18Heenan and Murray Study of Reported Rapes in Victoria 2000–2003: summary research report (Office of Women’s Policy and Department for Victoria Communities, Melbourne, 2006); D Lievore Non-Reporting and Hidden Recording of Sexual Assault: an international literature review (Office of the Status of Women, Canberra, 2003); and R Jewkes, P Sen and C Garcia-Moreno “Sexual violence” in EG Krug and others (eds) World Report on Violence and Health (World Health Organization, Geneva, 2002) all as cited in Elaine Mossman and others, above n 6, at 6.
19Heenan and Murray Study of Reported Rapes in Victoria 2000–2003: summary research report (Office of Women’s Policy and Department for Victoria Communities, Melbourne, 2006) and D Lievore Non-Reporting and Hidden Recording of Sexual Assault: an international literature review (Office of the Status of Women, Canberra, 2003) both as cited in Elaine Mossman and others, above n 6, at 6.
20Ministry of Women’s Affairs Restoring soul: Effective interventions for adult victim/survivors of sexual violence (2009) at 13–14.