Chapter 7
The case for an alternative justice mechanism


7.66This chapter has set out the case for an alternative justice mechanism, which will be developed in Chapters 8 and 9. We have argued above that an alternative justice mechanism would be valuable in terms of meeting victims’ justice needs and in addition we consider that such a process could be especially useful in addressing the range of incidents of sexual violence. For example, in consultation we heard about incidents of sexual violence being dealt with privately in a restorative way. Police are not necessarily involved and any outcomes agreed to are carried out as a matter of good faith. In one instance we were told of a psychologist who acted as one of two co-facilitators (one of whom was a lawyer) in privately facilitated sessions between victims and perpetrators of historic sexual violence. All of the victims involved explicitly stated that they did not want to go to court, not necessarily because they were afraid of the trial experience, but because they felt that this process was more fitting. The whole process occurred completely separately of the criminal justice system.

7.67We have also heard of similar restorative-type meetings occurring in the New Zealand university context, with co-facilitators working with a victim and perpetrator respectively and successfully bringing them together to address sexual violence committed against the victim. One university highlighted to us that, although it is very supportive of the use of restorative processes, such as restorative justice, and is seeking to use these in its disciplinary procedures, it is cautious about using such processes in cases of sexual violence, due to the seriousness of the conduct in question and the university’s inability to protect any student who may make admissions within such a process.

7.68If, however, there was a safe way to utilise restorative processes, the university in question expressed strong interest for such processes to be put in place, as many students do not wish to make a complaint to Police. Some wish to continue in a relationship with the perpetrator, whilst wanting the perpetrator to know the effect of the behaviour complained of and that it is unacceptable. Conversely, there is currently no incentive (due to the risk of imprisonment) for any perpetrator to acknowledge the sexual violence that occurred, nor is there any protection for those perpetrators who do wish to acknowledge what occurred and make redress. Our consultation has highlighted that any alternative process needs to be thoroughly thought through in order to pre-emptively address these issues.

7.69During the course of writing this Report it has become apparent that an alternative justice mechanism could be an appropriate option for victims in a variety of workplaces and institutional settings (such as secondary schools, the military, and hospitals) where incidents of sexual violence have occurred but where victims do not wish to, or are not easily able to, come forward to Police but want some way to address the incidents in question.