Chapter 9
Proposal for reform

Diversity of programmes

9.23As set out in Chapter 7 we consider that it should be possible for there to be a range of programmes offered under the alternative process. Therefore, rather than endorsing one programme, we recommend that an accreditation framework is developed which covers the key values and components that should be present, whilst allowing a diversity of programmes to be developed to meet the differing needs of victims.

9.24For instance, in some cases, an intensive approach in the nature of that developed by Project Restore will be appropriate with its “team” of a victim specialist, offender specialist, and a conference facilitator.594 In other cases, it might be more appropriate for co-facilitators, with specialist input, to conduct the process on a shorter timeline.595 Programmes could be tailored to provide, for instance, for different ethnicities, those with particular disabilities, or young people. There could also be variation in location (for instance, a marae or church), the number of people involved, or specific cultural practices that apply.

Models without perpetrator

9.25In some instances the victim may not wish to engage with a perpetrator, yet may wish to tell their story to a formal body. In such cases an alternative approach might nonetheless still be appropriate, such as restorative justice-type practices which draw on “truth-telling” – where the victim is able to go before a formal body, perhaps including their own community, and tell their story of sexual violence.596 This could provide validation and vindication of the complainant’s experience and the wrong committed against him or her. Therefore, some programmes may be developed to address these kinds of situations.
9.26We are told that, in the experience of Project Restore, it is often in the preparatory work with victims that extremely valuable work is done in providing validation and support to victims, even if a conference does not result.597 The experience of the South-Eastern Centre Against Sexual Assault (SECASA) in Melbourne is that, in the majority of its cases, victims do not opt to involve a perpetrator but rather they choose to work on reconciliation or strengthening family relationships that have been affected by the act of sexual violence.598

9.27Alternatively a perpetrator may be unwilling, or deemed inappropriate, to participate in the alternative process and so an adapted programme or model without the perpetrator could be utilised by the victim.

Marae justice modelTop

9.28Restorative justice providers who work with Māori have told us that there is a demand for services that are targeted to sexual violence, but that are also underpinned by kaupapa Māori and that allow for participation of whānau and hapū. Mana Social Services and Korowai Tumanako, respectively based in Rotorua and the far north of New Zealand, are, amongst other things, providers of restorative justice services to complainants of sexual violence who have been referred from the courts under the Sentencing Act 2002. They service heavily Māori-populated communities.

9.29In the Māori world view, sexual violence impacts not only on the mana of a whānau member who is the victim, but on the whole whānau.599 A possible model could emphasise the collective and might, for instance, be based on the approach to dispute resolution described by Valmaine Toki. She describes a process where the marae is the forum for resolution and the imbalance in the community caused by the individual’s actions is addressed as follows:600

[T]he principle of kotahitanga (inclusiveness) in participation and accountability underpin any process of Māori dispute resolution. All parties to a dispute must be represented and given an opportunity to be heard. In contrast to the present criminal justice system, it is not essential that the individual be present as it is the collective that is the defendant and it is the collective that is the plaintiff. But the individual would suffer a loss of mana if they did not attend.

If the wrongdoing is not admitted by the group or the offender, it is passed to the living relations by whanaungatanga … The offender is encouraged to accept responsibility and in doing so re-establish the mana amongst the group. The group then decides what actions are required by the offender to establish utu [reciprocity to restore the balance] with the victim and their community.

9.30To fit within the alternative process model, there would still need to be an election by the victim to a collective approach as well as consent by the perpetrator (and the involvement of specialist facilitators/providers in the process) but, in our view, as long as the relevant processes comply with the key values and accreditation standards, there would be room for creative approaches towards development of the programmes themselves.

9.31Such a model may also be appropriate amongst other cultures which emphasise the impact of harm on the individual and also on the individual’s community and wider family.

Key valuesTop

9.32From our research we identified the key values and features that need to be incorporated into programmes, which are that:601

9.33Where the perpetrator is involved in the programme, the following aspects should be incorporated:

594Project Restore has also provided feedback to us that it does have the ability to be flexible in its programmes, and adapt them to the participants involved: Meeting between Project Restore and the Law Commission (19 October 2015).
595For instance, we have been told of this approach where sexual violence occurs in university halls of residence. This may be more appropriate where there is less of an entrenched power dynamic and the issues involved relate to consent, communication of consent, and the use of alcohol.
596Leigh Goodmark “‘Law and Justice Are Not Always The Same’: Creating Community-Based Justice Forums for People Subjected to Intimate Partner Violence” (2015) 42 Florida State University Law Review 707.
597Email from Project Restore to the Law Commission (7 September 2015).
598Email from Bebe Loff (Monash University) to the Law Commission (6 September 2015) enclosing the Monash University Human Research Ethics Committee application form for their restorative justice pilot project. Bebe Loff is director of Michael Kirby Centre for Public Health and Human Rights of Monash University in Melbourne and is leading the evaluation of the SECASA pilot project.
599McDonald and Tinsley “Rejecting ‘one size fits all’: Recommending a range of responses” in McDonald and Tinsley (eds), above n 588, 377 at 428.
600Valmaine Toki “Are Domestic Violence Courts working for indigenous peoples?” (2009) 35 CLB 259 at 276, cited in McDonald and Tinsley “Rejecting ‘one size fits all’: Recommending a range of responses” in McDonald and Tinsley (eds), above n 588, 377 at 430.
601We have drawn here on Project Restore Restorative Justice for Sexual Violence: Principles of good practice (Project Restore NZ, 2010); Ministry of Justice Restorative Justice in New Zealand - Best Practice (2004); and Centre for Innovative Justice Innovative justice responses to sexual offending - pathways to better outcomes for victims, offenders and the community (Centre for Innovative Justice, 2014).