Chapter 8
Key issues concerning the alternative process

Incentivising perpetrator participation in the alternative process

8.54Throughout our consultation process it was made clear that one of the key concerns with the criminal justice system is that there is no impetus for perpetrators to acknowledge their wrongdoing in any form, because any acknowledgement exposes them to the risk of a long term of imprisonment. Coupled with this is the fact that in cases of sexual violence there is often little evidence, other than the word of the victim and perpetrator, which makes establishing proof beyond reasonable doubt an unlikely outcome in a criminal trial. Perpetrators may therefore be advised or be prepared to risk pleading “not guilty”, if charged with an offence, as the likelihood of conviction in such cases is low.

8.55Perpetrators who do wish to engage in mediation, discussion or some sort of informal process outside of court are not currently protected, as what they say could be used to initiate criminal proceedings against them or used in the course of criminal proceedings. This is an issue that must be considered in respect of perpetrator participation in our proposed alternative process.

8.56A perpetrator may not be prepared to engage in the alternative process unless what is said, and the fact of participation, is “privileged” – that is, protected from use in any subsequent court proceedings. The risk for perpetrators, with the current situation, is highlighted in a 2010 exploratory study of the work of Project Restore:585

Victim-survivors can withdraw from the restorative process at any time and place charges with the police. Offenders are [therefore] urged to seek legal advice before agreeing to participate. If the offender does choose to continue, Project Restore labels the conversations as “therapeutic interventions” with the expectation that conversations will be protected, although this is a protection that has not yet been challenged in court. Project Restore keeps limited information on self-referred cases to help protect confidentiality and privacy.

8.57The study highlighted that if the information disclosed in a restorative justice process could be legally protected, “in the same way [as] a therapeutic conversation between a doctor and a patient”,586 there would be a greater chance of honest and full participation from perpetrators. Feedback we received in submissions and during consultation, including from those working with victims of sexual violence, emphasised the importance of perpetrators being protected against inadvertently incriminating themselves. We therefore consider that any disclosures made in the alternative process should be privileged, as a necessary incentive for perpetrator participation.

8.58In the previous chapter we outlined various models (including that proposed in the report of the Centre for Innovative Justice) that confer privilege on disclosures but leave open the option of criminal prosecution. However, in our view, this approach may discourage participation by many perpetrators, as we consider that it is likely that perpetrators will be advised not to participate in the alternative process without the further protection of a statutory bar against prosecution of the same incident of sexual violence. As we wish the alternative process to be available for as many victims as is possible, we consider that a statutory bar to prosecution also needs to be one of the protections of the alternative process. We discuss this in more detail in the next chapter.

8.59However, regardless of what incentives are put in place, there may still be some perpetrators who do not wish to engage with the alternative process. This may particularly be the case where there is insufficient evidence for a perpetrator to be charged with, let alone convicted of, an offence, and consequently little impetus to participate in the alternative process.

8.60In such situations the victim will, unfortunately, be unable to progress a case through the criminal justice system (for lack of evidence) and yet may also be unable to utilise the alternative process (if a perpetrator does not wish to participate). We therefore consider that the alternative process should, where possible, be able to be used by victims to meet their justice needs in ways that do not involve the perpetrator (for instance, by using the process to reconcile with family or to receive validation from their community of support).

8.61In the next chapter we discuss the alternative proposal in more detail and the range of programmes we think could be made available to meet the various justice needs of victims.

585Jülich and others, above n 582, at 53.
586At 29.