Are There Alternatives to Resorting to the Trial Process in Sexual Assault Cases?

How courts can more effectively deal with sexual violence/domestic abuse cases is one of the greatest challenges facing judges. While it is often difficult for courts to simply adopt innovations or approaches from foreign countries, at a minimum thinking about how thoughtful leaders approach reform is useful. At a minimum, it requires us to think about what we do, why, and can it be more effective.

On December 14, 2015, the New Zealand Law Commission released its report: The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes:

In this report, the Law Commission reviews the trial processes in New Zealand in relation sexual violence cases and makes recommendations for change. These recommendations include “a consideration of whether a non-criminal process is a viable alternative way of dealing with certain incidents of sexual violence.” Interestingly, the Law Commission recommends that “judicial specialisation should be achieved by requiring judges to hold a designation before they may sit on sexual violence cases” (at page 102). The Law Commission also suggests that there is a lack of confidence among participants in the criminal justice system (at page 128):

Research indicates that participants in the criminal justice system find it to be “an artificial, alienating and disempowering process that does not produce an outcome in which they have confidence.”

In the forward to its report, the Law Commission suggests that “incremental change…will not bring about the desired result of bringing…complainants within the formal justice system or satisfying their legitimate needs”:

…a significant number of complainants are “opting out” of the very system that is supposed to recognise their rights and support their needs. They are doing so largely because they perceive the formal criminal justice system to be alienating, traumatising, and unresponsive to their legitimate concerns.

The fundamental task for the Law Commission in this Report has been to assess and make recommendations on how the position of complainants might be improved, but without compromising the trial rights of defendants. It has to be said that this is no easy task. Indeed, it is one of the more challenging law reform exercises that can be posed today.

The Commission is of the view that useful improvements can and should be made to the existing formal system, and we have addressed these in our Report. The Commission has however also reached the view that incremental change, which has been struggling forward over the last three decades, will not bring about the desired result of bringing these complainants within the formal justice system or satisfying their legitimate needs.

The Law Commission concludes that “a specialist sexual violence court, however formally constituted, is required, and potentially as a division of the District Court.”

Recommendations:

Among the Law Commission’s eighty-two recommendations are the following:

R1 Legislation should require that, save in exceptional circumstances, all cases involving sexual violence should be set down for hearing within a specified time of the filing of the charge.

R19 The objectives of the specialist court should be:

·to bring specialist judges and counsel together in a venue that enables robust fact-finding without re-traumatising the complainant; and

·to facilitate a coordinated and integrated approach among the various organisations and people who deal with complainants in sexual violence cases.

R27 The Government should consider the desirability of funding a long-term research project to examine the feasibility and design of a specialist sexual violence court to operate post-guilty plea, in the form proposed in the Law Commission paper Alternative Pre-trial and Trial Processes: Possible Reforms (NZLC IP30, 2012).

 

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