Chapter 8
Key issues concerning the alternative process

Which cases can proceed through the alternative process?

8.2Our proposal for an alternative justice mechanism, which we outline in the next chapter (and which we call the “alternative process”), would operate on a voluntary basis at the election of a victim, completely outside of the court process, and with the participants “tak[ing] on responsibility and control for the outcome”.551 There is a question, however, whether there should be any filtering out of cases or any limits placed on victims’ choices as to which cases can proceed through the alternative process.

8.3There are four principal reasons why some limits on the eligibility of cases might be imposed, and these are based on victim safety or public safety:

(a) In some cases, the perpetrator may pose an ongoing risk of committing acts of sexual violence against others in the community.552

(b) The public might consider the acts of sexual violence to be of such a character that they must be dealt with in the criminal justice system.

(c) In cases involving intimate partner violence, the alternative process might not be appropriate.

(d) The dynamics of some cases may make them unsuitable for the alternative process – for instance, where the victim is at risk of secondary victimisation or further emotional harm from the perpetrator, where there is a significant age gap between the parties, or where there are coercive pressures on the victim or parties to participate.

8.4We deal with each of these in turn and consider whether there are safeguards or steps that should be taken to address the situations described above.

551Elisabeth McDonald and Yvette Tinsley “Rejecting ‘one size fits all’: Recommending a range of responses” in Elisabeth McDonald and Yvette Tinsley (eds) From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, 2011) 377 at 421.
552We are primarily talking here of the risk of a perpetrator committing further acts of sexual violence. There is some evidence that those who have been convicted and imprisoned for sexual offending against an adult tend to be generally antisocial and are just as likely to reoffend in a violent non-sexual way as to reoffend sexually and more likely to commit a general offence – such as burglary. However there is little research available regarding the likelihood of reoffending in sexual or other ways of those amongst the population who would not normally be convicted of a sexual offence – for the very reason that they usually escape detection. They may in part escape detection because they are not generally antisocial and therefore not perceived as “real rapists”. We are grateful to Danica McGovern of Victoria University of Wellington (PhD candidate in the area of risk assessment and treatment track for sexual offence court) and Professor Devon Polaschek of Victoria University of Wellington for their insights on these issues and other matters addressed in this chapter including risk assessment mechanisms, reoffending, and public interest factors.