Report suggests no juries in rape trials

Justice Minister Amy Adams is weighing a Law Commission report that could transform the legal process for both complainant and accused. Photo / Mark Mitchell

Rape trials could be heard before a judge alone - not a jury - under radical proposals before the Government.

Justice Minister Amy Adams is weighing a Law Commission report that could transform the legal process for both complainant and accused.

The primary recommendation - likely to be implemented with broad support - is to try out a specialist sexual violence court, with expert judges and lawyers.

But other ideas are much more controversial, including scrapping juries in favour of another model.

Outlining allegations in front of a jury could be traumatic, the commission noted, and such cases were more likely to result in a hung jury.

In 2014/15, 8 per cent of sexual violence cases before District Courts were retrials, compared with 0.8 per cent of all trials.

There were also "powerful cultural conceptions" that were "unique to sexual violence as a form of criminal offending". These could include moral beliefs about how a woman should behave, and misplaced ideas about how sexual violence occurs or the "correct" response.

The commission concludes there is a case for eventually putting sexual violence cases before something other than a jury - perhaps a judge alone or judge with two expert "lay assessors", as in Germany.

The report went to Adams last December. She has said she is considering it.

This week a jury of four women and eight men could not reach a verdict in the trial of cricketer Scott Kuggeleijn for the alleged rape of a woman in Hamilton.

The case put the spotlight on consent and how sexual violence cases are treated by the courts, with women's rights advocates denouncing the defence strategy as part of a culture of victim-blaming.

Labour's spokeswoman on sexual and family violence, Poto Williams, said in many cases she believed a judge alone or other entity would be better than a jury. However, jury trials would still be needed in some situations, and how that was decided would be critical.

Steve Bonnar, QC, convener of the Law Society's criminal law committee, said scrapping jury trials would be a significant erosion of a defendant's rights. It was an unfortunate reality that not all complainants were victims.

"Sometimes these are some of the more serious cases that people can be prosecuted for ... it would be an erosion of many centuries of legal process."

The Law Commission has also recommended providing an alternative process for certain lower-level cases, outside the criminal justice system.

Victims would initiate the process and seek redress such as an apology or payment and the perpetrator would not have a criminal record.

Sexual violence law reforms

Law Commission recommendations include

• A sexual violence court as a two-year pilot, with specialist judges and counsel.

• Have District Court and High Court judges take training courses in order to sit on a sexual violence case.

• Consider an alternative to juries in such cases -- perhaps a specially trained judge alone or judge with two expert "lay assessors".

• Consider limiting the right to trial by jury in sexual violence cases.

• Enable victims to seek redress such as an apology, and which wouldn't lead to a conviction.

• Ensure cases start in a timely fashion.