Chapter 5
Court specialisation for sexual violence cases

The case for court specialisation in the area of sexual violence

5.7Court specialisation is well established in the New Zealand criminal justice system. Family violence and youth offending are recognised as distinctive social and criminal justice issues and, as noted above, they are dealt with in specialist criminal courts. Different rules and procedures apply in those courts, justified by the unique challenges posed by the relevant field of law.

5.8We discuss in Part A the distinctive impacts of sexual violence on its victims, which means that victims of sexual violence come to the courts with needs of a different order than victims of other kinds of criminality. Court staff may need training and education to ensure complainants feel they are being dealt with sensitively. So too may training and education be required to overcome cultural conceptions or “myths” which tend to accumulate around acts of sexual violence (see Part A). Such myths tend to be culturally and socially ingrained and therefore not well-understood or obvious to those who have no prior knowledge or experience in the area. Judges, lawyers, and court staff that are not aware of such myths and misconceptions are less well-equipped to interact appropriately with victims and may be less able to handle cases in an impartial manner.351
5.9The Victorian Law Reform Commission has identified a number of possible advantages of court specialisation in this area, including: recognition of the uniqueness of sex offence cases and sex offence complainants; reductions in delay; an opportunity to develop support services for complainants alongside the criminal justice process; and a symbol that sexual violence is taken seriously by the criminal justice system.352
5.10Court specialisation provides an opportunity to develop targeted supports for victims that are integrated within the court system.353 A proposal for court specialisation in the area of sexual violence will fit well with the proposals we make in Part D relating to victim support. Also, in Chapter 4 we recommend extension of the role of the specialist victims’ advisers for sexual violence which currently operate within the New Zealand criminal courts. A more formalised and widespread form of court specialisation could provide opportunities for that adviser role to gain more recognition, to be well supported, and to be thoroughly integrated and recognised within the court system.

Consultation, submissions, and other views

5.11Advocates in the sexual violence area from organisations including Project Restore and HELP emphasised to us the importance of specialisation when dealing with sexual violence, because it is very different in nature to other forms of criminal offending and specialisation builds best practice. They noted that people who are the victims of sexual violence must be interacted with in a very specific, specialised way if they are to feel supported and consequently willing to engage with the criminal justice system. This was a consistent theme of our discussions with those in the sexual support sector.

5.12The Issues Paper had options for specialisation in the form of specialist judges and accredited counsel.354 A number of submitters who commented on those proposals supported the concept and objectives of specialisation,355 although the point was also made that specialisation should not put those judges and counsel at risk of burn out, cynicism or trauma.356

5.13Some people we spoke to and some submitters, however, sounded a note of concern about the potential risks of “treating sexual violence differently” in the court system.

5.14One concern was about creating a perception that sexual violence is less important than other kinds of offending. The submission to our Issues Paper from the Roundtable on Violence against Women noted that they did not wish to see the serious impact of sexual violence minimised through the establishment of specialist courts or to see its seriousness diminished in the eyes of the community.357

5.15This does not appear to have been the case in instances where court specialisation is employed in the area of sexual violence overseas. Nor does it seem to have been the result of a specialised court response to family violence in New Zealand. People we spoke to in the family violence sector suggested that family violence courts need to be better resourced and present all throughout the country, but raised no concerns about the diminishment of seriousness in the eyes of the community as a result of specialist courts, or as a result of family violence having been singled out as an area where a specialist approach is required.

5.16Another potential concern about a specialist court response to sexual violence is the perception of a loss of impartiality or objectivity in how the court deals with certain kinds of criminality.358 This does not appear to have been the experience of sexual violence courts overseas.

5.17Such apprehension may reflect a broader principle of certain criminal law theorists, that we have a generalist criminal law system and it is not appropriate for the law to single out particular areas of groups of people as requiring a specific or different response. Yet we note that specialisation is now a feature of our criminal justice system in various forms. This is demonstrated for instance by the singling out of youth offending for specific treatment in the Youth Court and by the more recent focus on family violence as a social and criminal justice issue and establishment of special courts to address it. We believe there are benefits to be gained from implementing some form of court specialisation for sexual violence.

351This may also be a reason for introducing specialisation into the fact-finding part of sexual violence cases – that is, requiring some expert understanding of sexual violence from the person or people who are tasked with determining whether or not the offence occurred, based on the facts. We discuss the arguments for and against changing the fact-finder in sexual violence cases in Chapter 6.
352Victorian Law Reform Commission Sexual Offences: Law and Procedure – Final Report (Victorian Law Reform Commission, Melbourne, 2004) at 171-172.
353Victorian Law Reform Commission Sexual Offences: Law and Procedure – Final Report (Victorian Law Reform Commission, Melbourne, 2004) at 172; Jeremy Finn “Decision-making and decision makers in sexual offence trials: Options for Specialist Sexual Offence Courts, Tribunals of Fact and Giving of Reasons” (2011) 17 Canta LR 96; and Australian Law Reform Commission and NSW Law Reform Commission Family Violence – A National Legal Response (ALRC Report 114, NSWLRC Report 128, October 2010).
354Law Commission Alternative Pre-trial and Trial Processes: Possible Reforms (NZLC IP30, 2012), proposals 3D and 3E.
355Law Commission, above n 347, at [237- 238] and [268].
356At [239] and [270].
357At [504].
358Finn, above n 353, at 102.