Chapter 9
Proposal for reform

Overview of proposal

9.5We propose that victims of sexual violence have the option of an alternative process as an alternative to (or, in some instances, as well as) participation in the criminal justice system. Victims could contact an accredited programme provider to discuss the range of options available and help determine what programme would best meet the victim’s justice needs. 

9.6Victims may wish to meet with a perpetrator to tell their story and seek redress (for example reparation, an apology or undertaking to complete a treatment programme) or they may, for example, wish to reconcile with or be validated in front of family members or their relevant support community. The process would be adapted to meet the needs and wishes of the relevant victim (and perpetrator), and therefore would not operate to a set model. The goal in all cases, however, would be for the victim to achieve what they felt was justice and for perpetrators (where involved or, if relevant, family members) to take responsibility for their actions, and where appropriate give redress and address the causes of their behaviour.

9.7In a programme where the perpetrator was involved, the provider would monitor any outcome agreement and, if the alternative process was satisfactorily completed by the perpetrator, there would be a statutory bar against the perpetrator being prosecuted in relation to the same incident of sexual violence. In a programme that did not involve a perpetrator, a victim would still have the option to make a complaint to Police and proceed through the criminal justice system.

9.8A programme may include:

Features of the alternative process

9.9The various features of the alternative process are summarised here and elaborated on in more detail throughout this chapter.

9.10The process would be voluntary and therefore the victim and/or perpetrator could withdraw from the process at any time, up until the time the process was completed. A victim who withdrew would have the option to make a complaint to Police and proceed through the criminal justice system. A perpetrator who withdrew would face the prospect of a complaint being made by the victim to the Police.

9.11There will be a number of incentives for a perpetrator to participate in the alternative process:

9.12A record of those who had completed the alternative process would be maintained, but disclosed only in limited statutorily-permitted circumstances.

9.13There would be provision for access to legal advice for the victim and perpetrator, and the fact of participation and any statements made would be privileged and confidential.

9.14Where the victim elected a programme that involved meeting or interacting with a perpetrator, then the victim and perpetrator would need to meet certain statutory eligibility criteria (see paragraphs 9.88 to 9.107) including, for the perpetrator, an acknowledgement that the incident occurred. The case would then be put through the risk assessment. 591  Where the provider determined that the case did not pass the risk assessment, a victim or perpetrator could apply for the decision of the provider to be reviewed.

9.15The provider would then subject the case to a suitability assessment based on the dynamics between the victim and perpetrator.

9.16The alternative process differs from the criminal justice system in that it does not involve a fact-finding forum which can attribute guilt and punish a perpetrator (and thus the victim does not have any input into a sentencing outcome, in the traditional sense). And, unlike existing court-mandated restorative justice programmes, the alternative process would operate outside the umbrella of the court and judicial oversight.

9.17In our view some degree of oversight is desirable to give those programmes credibility and authority, and to inspire public confidence in the process. At the end of this chapter we discuss the oversight functions that need to be performed in respect of these programmes.

591See Chapter 8.