Law Commission supports study’s call for new sex offending responses
RESEARCH TEAM: ASSOCIATE PROFESSOR YVETTE TINSLEY, PROFESSOR ELISABETH McDONALD, UNIVERSITY OF CANTERBURY (formerly – at the time of the research – Victoria University of Wellington), AND PROFESSOR JEREMY FINN, UNIVERSITY OF CANTERBURY
The Law Commission has supported calls in a Law Foundation-backed study for alternative ways of dealing with sexual offending.
These might include substituting jury trials with judges either sitting alone or assisted by lay assessors, as used in European jurisdictions. Other trial process options might include pre-trial cross-examination, as well as specialist judges, prosecutors, police, defence counsel and support persons.
The two-year study, published in December 2011 as a book From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand, argues that new approaches should be tried because of stubbornly unchanged prosecution rates and high levels of victim dissatisfaction with the system.
These might include substituting jury trials with judges either sitting alone or assisted by lay assessors, as used in European jurisdictions. Other trial process options might include pre-trial cross-examination, as well as specialist judges, prosecutors, police, defence counsel and support persons.
In 2015 the Law Commission reviewed trial processes in sexual violence cases, drawing on the Prosecuting Rape study findings. It recommended changes to current trial process, including time limits and specialist judicial training, as well as an alternative non-court process to redress the harm caused by sexual violence.
Co-researchers Elisabeth McDonald, Yvette Tinsley and Jeremy Finn say a “cookie-cutter, one size fits all” approach won’t work – “there is no perfect panacea that we can transport to New Zealand,” Yvette says.
Yvette Tinsley and Elisabeth McDonald, Victoria University of Wellington
Professor Jeremy Finn, Canterbury University
The study draws on overseas and local experience to propose alternatives to the current system. It advocates using restorative justice in appropriate cases, improved risk assessment processes in child sex abuse cases, and public awareness education.
The prosecution of sexual offending is a notoriously fraught process, with little improvement despite reforms over many decades.
The study was prompted by the Law Commission’s 2007 report into issues publicised by Louise Nicholas following the alleged sexual offending against young women by police officers in the 1980s. The report asked whether the adversarial court system should be modified or replaced by an alternative model in sex offence cases.
The authors travelled to Europe and studied the inquisitorial system in five countries. They found that greater involvement by professional judges in the fact-finding process, rather than two competing parties with the judge as umpire, could allow for less undermining of witnesses and more focus on establishing the facts.
On the other hand, witnesses could still face distressing questioning in the inquisitorial system. In some ways New Zealand’s system was superior, for example by allowing support people for victims and remote courtroom participation.
Elisabeth says that changing to an inquisitorial system would not necessarily lead to a better experience for victims, nor to higher conviction rates. There would also be practical problems in changing the system for sexual offending but not for other offences.
“The things that could make a difference are around the dynamic of how a judge comes to a decision – how much control a judge has over a case,” she says.
Sexual offence reporting and conviction rates in New Zealand remain very low – a Ministry of Women’s Affairs study last year found that only 13 per cent of sexual violence cases reported to Police resulted in conviction.
“The public perception is that the sentence for rape is 20 years, although realistically anything close to this penalty is reserved for the very worst offences. But that perception might be preventing people from reporting,” Ms McDonald says.
The authors argue that implementing this fuller range of responses would deliver appropriately just outcomes to all sexual offence victims, not just victims of “real rape” – that is, the paradigmatic crime committed by a stranger in a dark alley. This type of sexual offending is relatively uncommon, although such offending is most likely to be resolved satisfactorily from the victim’s perspective.
From “Real Rape” to Real Justice: Prosecuting Rape In New Zealand is available from Victoria University Press http://vup.victoria.ac.nz/from-real-rape-to-real-justice-prosecuting-rape-in-new-zealand/
