The brutal cross-examination process in criminal trials has long been acknowledged as a key reason why sexual violence victims receive so little justice in the legal system.
Struggling to put their lives back together after being sexually assaulted, many survivors decide that the ordeal of a trial will add too much to the trauma they have already suffered.
In recent decades, incremental changes have been made to laws and court processes to try and remedy this, but it is still estimated that only seven out of a hundred sexual assaults in New Zealand are reported to police. Only three in a hundred cases make it to court, and only one results in a conviction.
In the United Kingdom, 2013 research revealed that only 1070 rapists were convicted each year, despite up to 95,000 sexual assaults being committed. The study found that only one major sexual offence in 38 resulted in a conviction.
The Law Commission yesterday released its proposals for improving the way in which New Zealand deals with sexual violence. The 252-page report titled The justice response to victims of sexual violence: criminal trials and alternatives processes proposes two key changes:
• The piloting of a specialist sexual violence court.
• The creation of an alternative justice process for victims who do not wish to go through the criminal law system.
The commission suggests that a specialist sexual violence court with trained and accredited judges, prosecutors and defence lawyers should be trialled for two years in one or two locations. Consideration would then be given to making the courts permanent and extending their operation to the rest of the country.
The commission also recommends that every District and High Court judge sitting on sexual violence cases should have a designation to do so - meaning they would be required to complete a special training course. There are specialist sexual violence courts in nations such as South Africa and it is well past time for New Zealand to adopt such an initiative.
However, making the courts effective would require both extensive training for judges, the prosecution and defence lawyers; as well as funding to ensure that education is ongoing.
The training suggested by the commission for lawyers would not be adequate. Training for lawyers about sexual and domestic violence needs to start in law school, and should continue once lawyers are practising.
Without that, lawyers will continue to make use of the same rape myths which are currently preventing victims from obtaining justice. These include "She asked for it by wearing a short skirt or drinking alcohol or going out after dark"; and "She agreed to sex but regretted it next day so laid a complaint with police."
One recent example of this was a case in November 2013, when Wellington barrister Keith Jefferies told a jury that a woman raped in an alleyway by his client had made a false complaint to police six days later because she regretted having consensual sex. He said that she could easily have prevented the attack.
"All she would have had to do was to close her legs... it's as simple as that. Why didn't she do that ? The reason she didn't do that was because the sex was consensual. As easy as that."
New Zealand a decade ago began setting up specialist Family Violence courts aimed at dealing better with domestic violence in the criminal courts. However, the Family Violence courts have not succeeded in that goal. The lawyers working in the Family Violence courts do not have specialist training, and the courts have often applied a "therapeutic approach" to intimate partner violence when the key focus should be on the safety of the victim and the children.
This demonstrates that simply establishing a specialist court is not enough. Expertise, funding and training are essential.
The commission also asks whether juries should be phased out in sexual violence cases - a suggestion well worth exploring. Juries, like judges and lawyers, bring myths and preconceptions about rape to their deliberations. It would be better to have a specialist judge, sitting possibly with "assessors" - people with knowledge and understanding of sexual violence.
The second main suggestion by the Law Commission is that of an alternative process for sexual assault victims who do not wish to go through a trial. The commission proposes that such victims should be able to access accredited programme providers to discuss options which would meet their needs. These could include meeting with the perpetrator to seek redress, such as an apology or an undertaking to complete a treatment programme.
If the process was completed, the perpetrator would not be charged or go through the criminal court system. Victims would have to elect to embark on this process and cases involving multiple perpetrators, use of weapons, or extreme physical violence would be excluded.
A process which could achieve justice for sexual violence victims who currently obtain no redress through the court system would be welcome. At present, if prosecutors decide there is insufficient evidence of the type required for a criminal trial, or if victims decide not to go through a trial, there is no other option for obtaining a remedy.
The overwhelming majority of sexual violence victims both in New Zealand and in other countries accordingly obtain no justice, and perpetrators are not held to account. However, there would need to be significant funding provided to make an alternative process work properly, and many safeguards would be required.
The Government is currently introducing restorative justice in domestic violence cases. This is resulting in some domestic violence victims coming under intense pressure to agree to restorative justice when they do not wish to do so and when their safety is not adequately protected. Some are told that a refusal to consent to restorative justice will impact badly on them in relation to future decisions about their children as they will be labelled uncooperative.
Further, those running restorative justice often lack expertise in intimate partner violence.
If an alternative process is to be considered for sexual violence cases, victims would need to be assured that their views would be respected, and that they would not be pressured to agree to the alternative process when they did not wish to do so.
The model outlined in the Law Commission report also poses the risk that sexual violence within relationships will continue to be downplayed. If cases involving multiple perpetrators, weapons and extreme physical violence continue to go through the courts, but so-called "date rape" is dealt with through the alternative process, there is a danger that the latter will keep being regarded as not being "real rape."
Parliament's Social Services Committee on Friday released the report of its inquiry into the funding of specialist sexual violence social services. MPs made 32 recommendations, including the development of an overarching policy framework for preventing and responding to sexual violence, and the provision of funding for comprehensive specialist services for survivors.
The Law Commission report and the parliamentary committee's proposals tell us what needs to be done.
Now, let's have speedy action from the Government.
Catriona MacLennan is a barrister and journalist.
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