Executive summary

1Sexual violence occurs in a number of contexts and in a number of forms. It has certain defining characteristics that distinguish it from many other forms of criminal offending. Among these is that it usually occurs in private and many acts of sexual violence are perpetrated by someone known to or in a family or domestic relationship with the victim. For this and many other reasons, it tends to be neither talked about nor reported. Through fear of what will happen to their family, through shame or guilt, or through apprehension that they will not be believed, the victims of sexual violence may choose not to tell anyone about it. Another reason for not reporting sexual violence to the authorities, as established in a New Zealand-based victim study, is fear and distrust of the legal system.1

2The significant under-reporting of sexual violence inhibits the proper operation of the criminal justice system. The acts in question cannot be scrutinised for their evidential strength and, if necessary, charges filed so they can be tested in a criminal trial. The mechanisms of the criminal justice system, which are designed to investigate, test, and prosecute alleged criminal offending, cannot operate. Perpetrators of sexual violence are not held accountable for it. Victims and their families and whānau do not see any form of justice done.

3It is in this context that the Law Commission has completed this Report. We have considered whether the criminal trial process as it applies to cases of sexual violence should be modified or fundamentally changed, in order to improve the system’s fairness, effectiveness, and efficiency and, in particular, the court experience of complainants. As such, we begin by looking at the processes that occur at trial and considering whether those could be improved. A substantial part of our Report is concerned with those matters, and the option of a separate court to process sexual violence cases is one of many reforms we consider in that section.

4However, it has also become apparent that many victims do not report because the way the criminal justice system currently responds to sexual violence does not suit their circumstances. There is no question of the psychological and physical harm that sexual violence can do to its victims. But a criminal trial, with the potential for conviction and imprisonment of the perpetrator if the act is established beyond reasonable doubt, is not always the response that will most effectively target the harm caused and that will bring the outcomes that victims want, that meet their needs, and that consequently benefit their families, whānau, and communities. The weight of our consultation with the justice and sexual violence sectors has supported the suggestion that there are ways to do justice for victims of sexual violence, in a way that meets the broader public interest, that do not involve a criminal trial.

5Determining what that should look like, and how it should be made available to victims in a way that is appropriate and suitable given the circumstances in which the sexual violence occurred and that balances private interests and public concerns, is the subject of a large part of our Report. In Part C of our Report, we examine the case for an alternative to trial which would be available for acts of sexual violence, if the victim wants it, if the perpetrator is willing to be involved,2 and if the case is assessed as appropriate.

6The third necessary aspect of this review concerns the support provided to victims of sexual violence. Good support is, for many victims, a necessary precondition to being willing and able to access the justice system. That includes practical, therapeutic, and medical support, received both directly after the act of sexual violence and on an ongoing basis.

7A huge amount of time and effort is put in by those who work in the sexual violence support sector, much of it on a voluntary basis (and therefore not necessarily reflected in the amount of funding the sector receives). We acknowledge the efforts of all those involved to respond to and support victims of sexual violence. We suggest that government could take on more of a leadership and support role so that those in the sector are in a good position to continue to provide high-quality support to victims of sexual violence.

8We have divided our review into three parts, reflected in the substantive parts of this Report:

1Venezia Kingi and Jan Jordan Responding to sexual violence: Pathways to Recovery (Ministry of Women’s Affairs, 2009) at 58. Just over half of the 75 victims surveyed had not reported the incident of sexual violence to Police. Twenty-six per cent of those who did not report cited fear and distrust of the legal system.
2Perpetrator involvement would not, in the reform proposal we put forward, always be necessary: see Part C.