From "Real Rape" to Real Justice, by Elisabeth McDonald and Yvette Tinsley (eds)
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Despite significant reform over the last 30 years, little real change has resulted to the incidence of sexual violence, conviction rates for sexual offending, or the distressing impact of prosecution experienced by complainants. High penalties for sexual offending, particularly sexual violation, affect decisions by complainants in reporting offending and defendants in admitting offending behaviour.
Following a statement by the Law Commission that there would be value in an investigation of modification or replacement of the adversarial trial model in sexual cases, the study reported in this book set out to undertake that investigation. In doing so, the researchers analysed published material from 20 jurisdictions; consulted with criminal justice professionals, academics and those who work with victims of sexual offending; and undertook an ‘on the ground’ examination of the dynamics of investigation and trial in five civil law jurisdictions. Recommendations for reform focus on the criminal justice processes in sexual cases, including the investigation of allegations of sexual assault; appropriate means of involvement and provision of information for complainants; evidential rules; attending to the effects of high penalties on decisions by complainants and defendants; and the role of the decision-maker in defended trials.
Rather than advocating for a simple wholesale move to an “inquisitorial” model, the need for a range of responses to sexual offending is demonstrated, with recommendations for alternative justice processes and a focus on treatment for offenders.
Elisabeth McDonald is an Associate Professor in the Faculty of Law, Victoria University of Wellington.
Yvette Tinsley is a Reader in the Faculty of Law, Victoria University of Wellington.
This book is the result of research partially funded by the New Zealand Law Foundation.
From: 2 From “real rape” to Real Justice, edited by Elisabeth McDonald and Yvette Tinsley
Chapter 2: From “real rape” to real justice in New Zealand Aotearoa: The reform project
Elisabeth McDonald and Rachel Souness1
Media coverage of the treatment of rape complaints by the police and the courts has suggested the futility of making these complaints and has described in detail the harassment that rape victims who complain usually receive at the hands of officials. This would seem to discourage, rather than encourage, women to report rapes. … Contrary to popular belief, rapes are generally committed by normal young men who are often acquainted with their victims. … An entire legal framework of myths and stereotyped preconceptions unrelated to reality has been constructed. This gulf between myth and reality necessitates re-evaluation of rape laws (1973).2
The community has become aware of the trauma of being involved in a rape trial through media reporting, and this knowledge can contribute to under-reporting and attrition. Survivors’ fear of disbelief and of having their character and credibility destroyed in court can be powerful disincentives to reporting to police or continuing through the criminal justice process. … There is also room to consider the influence of non-legal factors on criminal justice processes and outcomes. These factors include common misunderstandings about “real rape” and “real victims” that can influence the perceptions and reactions of different actors in the criminal justice process (2009).3
To victim advocates, specialist service providers, policy makers, academics and lawyers who work in the area of sexual offending the consistency of these statements will be further confirmation of what they already know: so much has been done but so little has changed. Over the last 30 years there has been a significant amount of research aimed at identifying, and changing, aspects of the criminal justice processes which impact adversely, and unfairly, on victims of sexual offending – especially those who have not been victims of what is referred to as “real rape”.4 However more recently there is a similar amount of research demonstrating that implementing law reform, whether substantive or procedural, is inadequate to bring about real justice unless accompanied by other long-term community-wide initiatives:5
Despite all the efforts and undoubted improvements over the past thirty years, the rape trial as it is configured in the common law world is frequently not up to the task of delivering justice for rape victims. … It is often said that the problem in rape cases is simply lack of evidence, or that it is just one person’s word against another. Our analysis shows that it is not necessarily the lack of evidence but the attitude towards the evidence which matters. … The view taken here is that changing attitudes, preventing stereotypical notions from infiltrating decision-making and replacing these notions with a realistic understanding of the problem of rape is one of the keys to achieving justice for its victims (2008).
[T]he process has revealed the limitations of legal change. By themselves, the changes to the law are not likely to affect the reportage of rape, and opinion is divided as to whether the trauma of the Courtroom trial for the victim will be lessened. … Those working in victim support services believe that unless there is some commitment made to these wider aspects of public education and moves towards the prevention of rape, then the changes in the law reform process are mere tinkering (1984).6
To evaluate whether law reform has resulted in “real justice”, it is necessary to identify the goals of the relevant reforms. If the aim of the reforms was to decrease the incidence of sexual violence while also increasing the reporting and conviction rates, there has been mixed success. While there appears to be a recent increase in the number of offences reported, there has been no significant change with regard to either the occurrence of sexual violence or conviction rates.7 If the aim was to make a difference to victims’ experiences of the criminal justice processes, such that the impact of participating in the prosecution of the alleged offender was not traumatic and distressing of itself, the report card equally reveals a picture of limited success. It is not possible, of course, to compare the experiences of rape complainants now with those who experienced the system 30 or more years ago. What is possible is to compare how complainants have reported the impact of that experience on their lives and their process of recovery from what they identified as sexual assault:8
Just having to get up there and tell a room full of people in detail about what happened. … It’s not a nice thing to have to talk about – being forced to have sex in front of a whole lot of people. I thought I was going to be killed when I was raped. If I had, I would have been spared this – it was worse than the rape itself. If that’s justice, I’d never report another rape (1983).
It was horrible. I was exhausted; like every part of my body that night was so sore. And it was embarrassing and kind of degrading and disgusting and I felt kind of like I was the one on trial because you know the things they ask you and the things they imply and you’re in a room full of people, 90 percent of whom I don’t know talking about intimate sexual stuff. Ninety percent of them are men, you know – most of them were men (2009).9
Clearly, despite the significant number of reforms over the last 30 years, in many jurisdictions, it is not the time for complacency. However, until 2006, at least in New Zealand, it appeared that systemic reform was not on the legislative agenda. Around this time there was some substantive reform of the Crimes Act 1961, providing that offences of a sexual nature should all be gender neutral.10 This had the effect, some argued, of ignoring the inherent power and control aspects of particular types of sexual violence, especially that which occurs within families. The Evidence Act 2006 was also introduced – an Act which does contain some significant reform of the admissibility rules in the context of “sexual cases”,11 although this was not made apparent during its progression through the legislative process.
In late 2006, however, there was a sudden and unexpected flurry of governmental activity. From 24 March 2007, substantial research funding was made available to the Ministry of Women’s Affairs in order to undertake research to “improve the safety and longer term well-being of adult victims of sexual violence and provide a strong evidence base for policy and operational responses”;12 on 17 April 2007 the Law Commission was instructed to reconsider the admissibility rules concerning bad character and evidence of previous convictions;13 in July 2007 an interdepartmental Taskforce was established “to lead and co-ordinate efforts to address sexual violence” and was supported in their work by a nationwide group of workers in the community sector called Te Ohākī a Hine – National Network Ending Sexual Violence Together (“TOAH–NNEST”);14 and in August 2008 the Ministry of Justice released a Publication Discussion Document entitled Improvements to Sexual Violence Legislation in New Zealand.15
The catalyst for this work was public disquiet with the events surrounding the prosecution of several police officers for the rape of a number of young women in the mid-1980s. Other officers were charged with perverting the course of justice by failing to act on complaints made at the time.16 Significant concern was expressed about the jury in the last of the prosecutions not being told that two of the officers had been convicted of rape of another young woman at an earlier trial.17
One of the main reasons that the cases captured the public interest and the consequential political attention over some period of time was because one of the young women, by this time in her mid-30’s, chose not to stay anonymous. Louise Nicholas chose to identify herself and to be available to talk to the media, public groups and lawmakers. Eventually she became the motivational figure for a series of local and national efforts to seek further change to address what the public now saw as issues of fairness of the prosecutorial process.
Following the acquittals of three men, all police officers at the relevant time, for the rape of Louise Nicholas, the then Prime Minister, the Hon Helen Clark, indicated her own discomfort with the verdicts, which turned on the issue of reasonable belief in consent. She observed that “no reasonable person would think that a troubled teenage girl engaging in group sex with police officers in a regional town [would be giving genuine] consent.”18 The Labour Government shortly thereafter tasked the Law Commission to “review the existing law relating to the extent to which the court in a criminal trial is made aware of the prior convictions of the accused … [and] any other evidence of accused’s bad character”,19 notwithstanding that the Commission had recently undertaken a 10-year review of the law of evidence, including evidence of character and credibility. The Law Commission’s proposed Evidence Code, including rules governing the admission of propensity evidence about defendants, formed the basis of the Evidence Act 2006, which came into force on 1 August 2007.
Unsurprisingly, the Law Commission, after considering a range of admissibility regimes from other jurisdictions, decided to wait until the relatively new provisions had been in force for longer before potentially considering reform. However, during the process of their work, the Commission formed the view that a broader approach to addressing the concerns identified as a consequence of Louise Nicholas’s experience (reflecting as they did a wider consensus) was needed. In the Foreword of the Report, Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character, Sir Geoffrey Palmer, then President of the Law Commission stated:20
[T]he Commission … has arrived at the view that all is not well with the traditional trial process in New Zealand in relation to sexual offending. The issues that have come to our notice during the course of this project cannot simply be cured by changes to the law of evidence. Problems in the system flow from the features of the adversarial system of trial that is, as presently constituted, an essential feature of our system of justice in New Zealand… For these reasons the Commission has concluded that there could be value in investigating whether the adversarial system should be modified or replaced with some alternative model, either for sex offences or for some wider class of offences.
That statement prompted the three principal researchers to plan a project to investigate possible options for modification or reform of the current procedure for trial and pre-trial processes for the investigation and prosecution of sexual offending, including possible alternatives to adversarial criminal trials. The New Zealand Law Foundation provided funding for research assistance and travel over a two year period.
Following the Law Foundation grant, the Law Commission was asked by the Government to undertake a similar investigation and is doing so in conjunction with our research.21
This book is a report of our research project. This Chapter provides an overview of the scope and context of our work, our methodology, consultation process and the terminology we have adopted to describe the various individuals, institutions and models of dispute resolution that we discuss elsewhere in this book.
In the next Part, consideration is given to the current social and political climate which this research sits within. It outlines some of the recent work on the issues, both in New Zealand and overseas, and identifies the transnational challenges with regard to the prosecution of sexual offending, as well as the culturally-specific concerns within our local communities. Of particular concern is the treatment of the indigenous Māori population, a community which is overly represented in crime statistics as offenders and victims.
Part III sets out the scope of the project, which developed into a much larger piece of work than initially envisioned – in part due to the fact that other work we hoped to build on was not as comprehensive or as detailed for our purposes as we envisioned when applying for funding. This Part makes it clear what is outside the final scope of our work, and identifies areas that therefore will need following up by other individuals, agencies or departments. Most importantly this Part states the goals for our research.
This discussion of the research parameters is followed by a description of the research methodology, including the process of developing our final recommendations. Included in this Part is a list of the terminology adopted in this book to refer to individuals at various stages of the investigation, prosecution and resolution of sexual offending, as well as the definitions we use for different types of criminal justice processes.
In Part IV we present an overview of what is sometimes referred to as an “inquisitorial” model, comparing this model to the traditional “adversarial” process. In this book, we refer to those countries that have historically given the decision-maker a role in the investigation and evidence-gathering stages of the prosecution process as “civil law jurisdictions” (for example, continental Europe). Those countries that have historically separated the role of the investigator and evidence-gatherer from that of the decision-maker are referred to as “common law jurisdictions” (for example, the United Kingdom and North America). This is because currently there are no pure inquisitorial models of criminal procedure in use – most jurisdictions, including New Zealand, use a hybrid model containing elements of both historical approaches. That said, some civil law jurisdictions retain significantly more “inquisitorial” aspects than others, or than is apparent in most common law countries.
In examining the prosecution processes in civil law countries, which was initially one of the primary areas of focus for our research, we also comment on the advantages and disadvantages of aspects of those processes in the context of cases of sexual offending. As one of the goals of our research was to identify “best practice” from other jurisdictions, we needed to analyse the varying practices in terms of what potential benefits they may offer if available in the New Zealand context. Further, we needed to be cognisant of the extent to which different approaches would address the concerns expressed about the New Zealand criminal justice process, and in particular the impact of current policies and practices on individual complainants and on the outcome of their decision to report sexual violence. For this reason the final Part of the Chapter contains a discussion of the research on attrition in cases of sexual offending in both common law and civil law jurisdictions.
The purpose of examining attrition studies is to assist acknowledgement of the fact that other models or ways of resolving incidents of sexual violence may not necessarily result in higher conviction rates or higher rates of reporting – nor will they necessarily positively affect the experience of victims and complainants of this type of offending. We needed to consider a range of options, not all sourced from civil law jurisdictions, to come up with a range of recommendations we believe have the potential to result in real justice, in cases other than just those involving “real rape”.
II Prosecuting Sexual Offending: The Context and the Challenges
As already noted, despite law reform work over a number of decades, the prosecution outcomes of sexual offending has proved strangely resistant to change, in terms of both conviction rates and complainant satisfaction with the process.22 In this Part we outline some of the recurring themes and challenges, both in New Zealand and elsewhere, as well as the current research that has attempted to assess why there has been so little change. Of course, the criminal justice process is only one option for resolution or recovery from offending – as such it may not amount to “justice” for all victims, and so victim expectation of the prosecution process needs to be carefully managed. We finish this Part by discussing the local context and the need to respond to the particular situation of the tangata whenua (the indigenous population) who face culturally specific difficulties with the resolution of offending within a legal system which is not their own.23
A Low Reporting and Conviction Rates
Sexual violation is regarded by criminal justice agencies as second only in seriousness to murder. The most recent New Zealand estimate is that only 9 percent of sexual offences are brought to the attention of police. This makes it the least likely crime to be reported. Under-reporting of this magnitude has broad implications for crime prevention and the criminal justice system, particularly as offenders are less likely to be held to account and may offend again…
Overseas research has shown that sexual offences that are reported to police have high rates of attrition (that is, a high proportion fail to proceed through successive stages of the criminal justice system) and low rates of conviction. Some of this attrition is avoidable. Research has also pointed to systematic differences in the types of cases that are more likely to proceed to trial and result in a conviction and those that are less likely to achieve these outcomes.24
In Part V we outline the recent attrition studies from New Zealand and overseas. They indicate that reporting and conviction rates for sexual offending are comparatively low, while attrition rates are high (especially at the investigative stage). Victim concerns about aspects of the investigative stage, especially their interaction with the police, are also identified in Chapter 5.25 Although there is limited research that investigates conviction rates for types of sexual offending, there is some evidence that suggests that there are lower levels of prosecution, conviction and sentencing for “acquaintance rape”, as opposed to stranger rape or “real rape”.26 The impact of the context of the offending with regard to charging decisions and prosecution outcomes is discussed further below.
There is a range of reasons for victim non-reporting and withdrawal at a later point in the proceeding.27 However, the recent Ministry of Women’s Affairs research concluded:28
Victims who are having doubts about continuing can be encouraged and supported to continue with the criminal justice process. There is room for more explicit discussion, training on and formalising of practices that could help overcome victims’ reluctance to proceed.
One of the concerns that resulted in the number of research initiatives begun in and after 2007 was that victims were not reporting because of a perception that the prosecution process would be as traumatising as the rape itself. This concern is not jurisdiction-specific, although in countries with adversarial trials it is the cross-examination that causes complainants the most distress.29 It is this form of questioning, as well as the content of the questions, which contributes to what is referred to as “revictimisation”.30
B Complainant Revictimisation During the Trial Process
Very few rape/sexual assault cases proceed to court, and research in this area has typically found the experience of the trial to be arduous and traumatic for all complainants. One of the hardest aspects to manage, not surprisingly, has been defence counsel’s cross-examination, with this experienced as akin to the initial rape experience.
The results from this  study indicate this is still the case. Going to court was a fearful and humiliating experience, and one that most victim/survivors felt they needed high levels of support to manage. Some complainants experienced extreme anxiety from having to face the perpetrator in court, or the way in which restrictions were placed on aspects such as the proximity of the support person.31
Cross-examination is the aspect of the trial which is often identified by complainants as the most unpleasant, akin to a second assault,32 – but it is not the only part of being a prosecution witness which influences their negative view of the criminal justice process. Victims report that they do not receive enough information at the relevant time, especially with regard to decisions that may affect their role as a witness – for example the option to give evidence via video link or preparation for cross-examination.33 The anxiety that can be caused as a result of victims not knowing or not understanding the trial process, and their role within it, is exacerbated by their limited contact with prosecuting counsel. Wanting more time with “their lawyer” has been a consistent message from complainants and is replicated in much research in common law jurisdictions.34 This and other victim concerns about the trial process, including witness questioning rules and the admissibility of sexual history evidence, are identified and responded to in Chapters 6 and 8.
Although the goal of some reform proposals, and some law and policy makers, is to increase the conviction rate for sexual offending, this is not always the aim of victims. Victim advocates and others working in the sector report, as they did to us, that for many victims the resolution process is more important than the outcome.35 To be listened to, to have their experience validated and to be well treated by the professionals they come into contact with tends to have a greater effect on overall victim satisfaction with the criminal justice system, and most likely their long-term recovery.36 Research to date indicates that specialisation of those involved in the prevention and prosecution of sexual offences and of those providing treatment and therapy is “best practice”, and therefore likely to result in the best outcomes for both offenders and victims.37 In Chapters 5 and 7 we discuss the desirability of training and specialist expertise for police, prosecutors, defence counsel and judges.
Training for those making decisions about complaint outcomes (including the jury) is also important as a response to ongoing concerns about the impact of “rape myths” on such decisions. Some of the literature that examines the influence of stereotypical ideas about who is a real victim and what is a “real rape” are discussed in the next section.
C The Persuasive Influence of Myths about Sexual Offending
While the majority of respondents were supportive of victim/survivors reporting sexual violation to the police, fewer said they would advise a friend or family member to go through the criminal justice system. … Of particular note were the number of respondents who said their advice would depend on the individual circumstances of the case (e.g. if there was no corroborating evidence and the case relied on disproving consent, vulnerability of victim/survivor, or if they had been under the influence of alcohol or other drugs at the time of the assault). Such replies suggested a clear recognition among respondents that some types of victim/survivors are less likely to receive justice.38
This 2009 research, which indicates an acknowledgement by those prosecuting sexual offences that the process is not healthy for complainants, replicates previous work in this regard. Defence counsel and judges also accept that reporting sexual violence may not be in the best interests of the victim:39
As a practicing lawyer, I was always of the view, and so was my family, that it would only be in the most extreme circumstances that you would ever advise a woman to participate in the criminal justice process if she was alleging she had been raped.
Alas, I would never advise members of my family to report a rape. And that is the fundamental questions which should be addressed because that is the 90 percent we are talking about – the women who do not report. I agree with everybody who has commented about this, that it is a huge issue.40
The recent New Zealand Ministry of Women’s Affairs research also confirms that the experience of a victim of sexual offending is dependent on the nature of the offence and the context in which the offending occurred.41 Those who have been subject to an unprovoked attacked by a stranger report excellent access to support mechanisms, more understanding and sympathy by police, a good relationship with prosecuting counsel and a less onerous time during cross-examination. These are also the cases which are most likely to proceed to trial (unless there is a guilty plea) and are most likely to result in conviction.42 These cases are about “real rapes”.43
By contrast, the experience of those who have been sexually assaulted by someone they know, perhaps in the context of a date where alcohol was consumed, is very different. They report less interest from the police in investigating, a decision to prosecute may well not be made and, if it is, the woman is likely to receive less access to support, will have less contact with the prosecutor and it will be rare for there to be a conviction.44 These are the cases which are “sure-fire losers”.45
The extent to which those involved in prosecuting cases can identify “sure-fire losers” depends on the extent to which the alleged offending matches the “real rape” template. Aspects of this template were listed by a senior barrister in an English study:46
People expect victims of rape to behave in an unrealistic fashion, because that is what society imagines or people imagine they would do – to complain straight away, to be distraught, to fight […] not to give in. I think any woman in that situation would [give in] – you’re not physically capable of struggling. [Juries] look for injuries on a victim when, you know, in the vast majority of cases there are no injuries. I think all of those are people’s perceptions of what a rape is and those are unrealistic expectations.
It is argued that decisions made by investigators, prosecutors, juries and judges are influenced by such unrealistic expectations or erroneous assumptions about rape, or by the extent to which they display “rape myth acceptance”.47 We discuss this dynamic, with particular reference to juries, in Chapters 7 and 8.
Other rape myths relate to the likelihood of men being falsely accused of sexual offending: “many so-called rape victims are actually women who had sex and ‘changed their minds’ afterwards”; and, “rape accusations are often used as a way of getting back at men”.48 We accept the argument made that more research is required to establish the numbers of actual false complaints,49 given the significance of this information to prosecutorial decisions and policy development. We also welcome the recent CPS initiative in England to develop policies around charging practices for those who withdraw complaints.50 The newly published Guidance acknowledges the following tension:51
Perverting the course of justice extends to the retraction of truthful allegations and such offences can sometimes be, and should be treated as, serious offences. However, there can often be a marked difference between the culpability of an individual who makes a false complaint against an innocent man and one who retracts a truthful allegation against a guilty man. Experience shows that the latter will usually arise in a domestic environment from pressures which are consequent on the nature of the relationships and characters involved.
There is no doubt that concern about false complaints, even in the absence of robust research about the number of such complaints, contributes to the resistance to further change to address any current unfairness to complainants. This position was expressed to us by a senior criminal practitioner:52
I am still concerned that the pendulum should not swing too far in favour of a complainant. The consequences of conviction – an extremely lengthy prison term, combined with the existence of enough admitted false complaints are frightening for both defendants, and those who have the responsibility of defending them.
Although it was certainly one of our aims to recommend changes to respond to ongoing complainant dissatisfaction with the prosecution process, we were also very aware of the need to consider the impact of any changes on fairness generally, but fairness to the defendant in particular. We now discuss how the rights and interests of defendants have been reflected in our proposals.
D Taking Account of the Rights of the Defendant
As a way of beginning the discussion of how we have responded to input from defence counsel, and how we have considered the fair trial rights of defendants, we will use this section of the Chapter to reply to some specific concerns put to us during the course of our research:53
I have been involved as counsel in sexual trials for over 30 years up and down the country. … In my view the question for meaningful research with the justice system should be how is the system failing the accused?
From my perspective:
(1) Most, if not all of sexual abuse prosecutions are instigated and/or motivated by women (behind the scenes in various roles) in what has been termed the sexual abuse industry.
(2) To discourage cross-examination is to preclude testing of the evidence of an accusation.
(3) The poor sods who face such accusations, (rightly or wrongly) have not much chance in today’s climate of successfully defending themselves. Upon conviction increasing terms of imprisonment are imposed roughly equating sentences for murder. The whole system these days is geared to the “comfort” of the complainant. This begs the question, whether there is anything to lose by killing the victim after the sexual assault?
(4) In my view such terms of imprisonment achieve little, both in terms of retribution and rehabilitation as far as both offender and victim are personally concerned.
It is undoubtedly true that most sexual abuse prosecutions are “instigated” by women, as a reflection of the percentage of women who are the victims of crimes of this nature.54 We find the reference to a “sexual abuse industry” unhelpful and divisive. It appears to suggest that women somehow benefit from their experience of sexual violence. There is simply no evidence of this. Further, the term could, with more accuracy, be applied to those men (fortunately few in number) who do seemingly derive benefit from their long-term sexually predatory behaviour. The reality is, in our view, that with few exceptions, everyone involved with non-consensual sexual behaviour is harmed as a consequence, harm, which according to recent Treasury estimates, costs the New Zealand economy $1.2 billion each year.55 It is in all our interests to work together to reduce this level of harm and cost.
We do not suggest that there should be no, or less, testing of prosecution evidence in cases of sexual offending. We do, however, consider that testing of evidence could be done as effectively without the use of some of the harmful and unproductive aspects of the cross-examination process. We note, in particular, that judges in civil law countries consider that they are able to assess the reliability and accuracy of a witness’s evidence without the need to resort to cross-examination of the type traditionally employed in an adversarial trial process.56 Modification of witness questioning rules, in a way that is consistent with the purposes of principles of the Evidence Act 2006,57 will also benefit all witnesses, including the defendant if testifying. We consider reforms to some admissibility and process rules in Chapter 8, and make specific reference to the fair trial rights of the defendant at various points.58
Presumably those who have been “rightly” accused are not “poor sods” – nor, we would hope, should they be able to successfully defend themselves. To the extent that the successful defence of actual offenders is a result of the current system, we consider this is an issue worthy of exploration. We do of course support an accused’s right to fully defend the charges against him, but we would hope that the criminal justice system also operates in the interests of public safety. Further, there is no reason to believe that changes aimed at improving the experience of complainants will necessarily impact adversely or unfairly on defendants. Both groups of individuals are entitled to fairness:59
[I]t is wrong to state per se that the concept of victims’ rights brings about a reduction in the rights of the accused. … It is difficult to see how some rights, such as the provision of information, support at court, or the provision of good facilities, impact upon defendants at all. Indeed, the two groups share much in common, including similar socio-economic characteristics. It is well established that there are a number of scenarios in which the victim and the defendant will share mutual concerns, such as the desire for a prompt and efficient trial process and to be provided with information about procedure. … No one set of rights should prevail, and both sets of rights should be afforded equal respect.
We disagree with the claim that the “whole system is geared to the ‘comfort’ of the complainant” – this is not reflected in recent research. However, as a result of our observations of trials in Germany and Denmark, we consider that the trial process could be more “comfortable” for all witnesses and defendants if changes are made to the role of the judge and the nature and input of the decision-maker. We discuss these possibilities in Chapters 7 and 9. We also consider the role of the victim more fully in Chapter 5.
We do not believe that most of those convicted of sexual offending are at risk of the same sentencing outcomes as those convicted of murder (there is also no possibility of lifetime recall on parole) – although we are in support of continued research concerning sentencing levels and the regular revision of sentencing guidelines, ideally with some form of community input. As this was not a project designed to examine sentencing issues, we are not in a position to make a recommendation that the maximum penalty for rape be decreased,60 but we do agree that lengthy terms of imprisonment are not the best outcome in many cases, and this was reflected in the comments made at our Consultative Workshop. Not all victims want the outcome to be imprisonment, especially those who have, and wish to maintain, a familial relationship with the offender.61 Other options for dealing with sexual offending are therefore discussed in Chapter 9.
One concern not noted by the correspondent is the disproportionate number of Māori offenders convicted of sexual violence. As Māori women are also disproportionately represented as victims, we consider, as do many others, that there is a pressing need to respond to the particular cultural issues identified by the current statistics. We contribute to this discussion in the next section.
E The Cultural Context: Meeting the Needs of Māori Offenders and Victims
Māori experience sexual violence at up to twice the rate of other women in New Zealand.62 Recent research indicates that there may be significant pressure placed on Māori not to report to police or to resolve the offending within the whānau (family):63
Reasons for this include the lack of Māori police in some areas and historical grievances between Māori and the Crown and, by extension, the criminal justice system. There was also a view that the criminal justice system is not suitable for Māori. Some felt that Māori were less likely to do well within the system because of its monoculturalism and lack of tikanga, because of institutional racism, or because Māori were less likely to be perceived as credible witnesses.
The combination of the high level of sexual violence committed against Māori and the lack of desire of Māori to engage with the existing dominant criminal justice system means that reforms which assist the resolution of sexual offending in Māori communities must be a priority. Reform must also, however, recognise the significance of the cultural context:64
The centrality of relationships to Māori cultural values means that sexual violation affects the mana or personal power of both the survivor and their whānau. The most effective services restore mana to the survivor and their whānau, in ways that are based on Māori cultural values, practices and beliefs. In addition, whānau often present to kaupapa and tikanga services with a spectrum of issues related to sexual violence, although the basis for presentation might initially be obscured.
The recent work undertaken by the Taskforce for Action on Sexual Violence and the Ministry of Women’s Affairs reminds us again of the lack of sufficient specialist alternative options for Māori – options that can address both the sexual violence and the recovery of the offender and the victim.65 Although Nga Katiaki Mauri (“NKM”), working with the Taskforce, supported the reforms proposed by TOAH–NNEST, as “increased effectiveness for all victims of sexual violence is also likely to enhance processes for Māori”,66 we also agree with NKM’s statement that:67
… fundamental change is considered particularly important for Māori, along with the exploration of alternative models of justice and resolution. Consideration of Māori systems of social control and dispute resolution are considered crucial to support whānau ora. … Tikanga, that has been practiced and handed down from tipuna (ancestors), must be given expression to and made relevant within the context of Aotearoa New Zealand today.
As our project was not originally designed to consider alternative forms of resolution to that provided by the criminal justice process, we were not well placed to investigate such possibilities (see the further discussion of our inability to undertake a kaupapa Māori process in the methodology section below). It is our hope, however, that the kinds of alternatives we consider, particularly in Chapter 9, will be of assistance in continuing the conversation about culturally specific solutions.68 We also support other calls for funding to be made available to Māori in order that Māori may develop and implement initiatives that will best meet the needs of Māori, while acknowledging that such needs may also be diverse.69
III The Scope of the Project, Methodology and Definitions
A The Scope of the Project and Matters for Future Work
As just noted, our project did not seek to cover all the issues relating to the prosecution of sexual offences and the way in which the victims of sexual offending are treated by government agencies. We were initially concerned with process issues, not with substantive issues such as whether to codify a definition of consent, or the allocation of the burden of proof.70 Nor were we concerned with sentencing practices and policies with regard to sexual offending.
Further, we did not set out to consider the extent to which the State provides support to the victims of sexual offending, whether by way of financial payments – through ACC or otherwise – or the provision of counselling or other resources, except to the extent that such provision is related to reform of procedures. Nor did we set out to consider or evaluate prevention initiatives, including community education.
It is also important to note that the three principal researchers involved in the project are all tauiwi (non-Māori) legal academics. As such, we have focused on issues and solutions that are within our areas of expertise – that is, primarily criminal justice, criminal law, evidence and procedure, but we do have interdisciplinary research experience. We therefore did not embark on this project in order to analyse, for example, the delivery of counselling services to victims of sexual offending, or the provision of treatment programmes to offenders. Nor did we propose any empirical research as part of this project – to do so would have meant a differently constituted research group and, as discussed below, our aim was to draw on already completed empirical research. The limitations and confines of our project are discussed further in the section dealing with methodology.
Further, although we were principally concerned with sexual offending by adults against adults, many of our recommendations are relevant to proceedings involving child victims. Other recent New Zealand research has focused exclusively on child witnesses and we refer to that work at various points in this book.71 We also do not specifically focus on the prosecution of youth for sexual assault – and, as such, do not undertake any review or analysis of the resolution processes specific to that group of offenders.
Our original goals were to:72
(a) Collect, collate and distil the concerns which have been expressed about the operation of current law and practices;
(b) Identify any other features of current law, practice and procedure which diminish the effectiveness and accuracy of criminal trials for sexual offences, or which impact unreasonably on victims and other witnesses;
(c) Identify and evaluate the proposals that have been made within New Zealand and overseas for amendment to the law;
(d) Investigate any other possible alterations of law and practice within the current criminal justice framework which could increase the effectiveness and accuracy of criminal trials for sexual offences, and alleviate the detrimental effect on victims and other witnesses; and
(e) Investigate the merits and the feasibility of adopting an inquisitorial model (or aspects of such a process) for trials of sexual offending.
However, as can be the way with major projects, the scope of the research has grown considerably from our first identification of the issues. The original primary focus was to examine relevant practices in overseas jurisdictions, particularly civil law countries, in order to identify possible options for reforming pre-trial and trial processes in New Zealand. In order to do this we planned to draw on research already completed or nearing completion in New Zealand to direct us to the issues most in need of consideration.
However, it transpired the Ministry of Women’s Affairs funded research, to which we sought, but were denied access prior to public release so that we could scope our project,73 did not include discussion of a number of matters that would have been helpful to draw on. Firstly, although the project team undertook an “environmental scan” of those agencies and community groups involved with victims of sexual violence, the final publication of this work does not provide a synthesised overview of the current pre-trial and trial processes. With assistance from the Law Commission, we have described the current process in Chapter 3 of this book. It was also important to situate our recommendations having regard to proposed legislative changes to current practices and processes. We do this in Chapter 4.
The Ministry of Women’s Affairs’ researchers, when undertaking the environmental scan, also did not seek the views or input of defence counsel, and they were denied permission to speak with members of the judiciary.74 Nor did they undertake any research of wider public opinion regarding the resolution of rape cases – this work is pressing and should be done. Finally, the researchers did identify broad areas of possible reform, but did not propose or undertake any consultation on specific ways that such reform could be developed or implemented. All these matters may well have been outside the scope of their project, but it was information we did not have prior to beginning our work.
The other work in progress prior to our project, which did provide some specific areas for reform, was that of the Taskforce for Action on Sexual Violence. The Report was eventually limited in terms of the final recommendations of the Taskforce,75 but the proposals of TOAH–NNEST, published in July 2009, have helped shape our research subsequent to the Law Foundation funding proposal. Most importantly, as a result of the Taskforce Report and further discussions with TOAH–NNEST, it became apparent to us that our project was too narrow in scope in one significant respect. The feedback we received was that as not all victims of sexual violence wish to seek resolution through the criminal justice process, alternative processes should be available in appropriate cases, including those acknowledging te ao Māori (the Māori dimension). This required us to consider other ways of addressing sexual violence outside the criminal justice process. The culmination of that work can be found in Chapter 9: “Rejecting ‘one size fits all’: recommending a range of responses”.
Two other matters of significance were discussed during our Consultative Workshop in April 2011. Firstly, concern was raised about child safety. A gap was identified between the work of the Family Court and the criminal courts. In particular, where there is an acquittal for sexual offending in the District or High Court, there is no automatic follow-up in the Family Court with regard to protection orders, notwithstanding that acquittal. It was also pointed out to us that in such cases there is no ongoing protection for other children in the community – for example, where the alleged offender goes on to form other step-parent relationships. Although considering ways of addressing such a gap, and the possibility of introducing different forms of protection orders, was outside the original scope of the project, we were of the view that the matter needed to be at least raised in this context. We also discuss this issue and provide options for change in Chapter 9.
Second, and somewhat unexpectedly, there was unanimity about the difficulties posed by the current sentencing levels for sexual violation (including rape). This was expressed in a number of ways. Those working with victims told us that many are placed under pressure from friends and family members not to report the offending to the police as the alleged offender could go to prison for 20 years. This, they said, is the wide spread community understanding of the potential consequences of a conviction, rather than the reality which is a starting point of six years (following a defended hearing).76 Sector workers said that victims may, even with no peer pressure, choose not to report as they do not want the offender to be imprisoned for a lengthy period of time, even though they would like some form of acknowledgement that the offending occurred.
Defence counsel were of the opinion that the potential penalty is so high in rape cases that, notwithstanding the discount for a guilty plea, most offenders, especially in acquaintance rape cases, were better off to defend the charge. One barrister expressed the view that it seemed to him nonsensical that the consequences of a non-aggressive (but from the victim’s perspective, non-consensual) sexual encounter between two people known to each other could be imprisonment for six years, whereas a violent and unprovoked beating of a stranger would be more in the order of two years.
Prosecutors, police officers and judges we spoke to also considered that the seriousness of the consequences for sexual violation impacted negatively on the resolution of some forms of offending and therefore the experience of victims. That is, where there are limited charging and sentencing options available, a decision not to charge, or the sentence imposed, may not be the best outcome as far as either the offender or the victim is concerned. On a separate occasion a powerful example was presented to us of community resolution as part of a pre-sentencing restorative meeting. This resolution was then undermined by the offender being imprisoned in a facility where it was unlikely he would be able to receive the treatment agreed to, and which was also in a geographical area that would make it difficult to maintain the community ties essential to his re-integration upon release.
As a result of these shared views, a number of proposals for change were discussed. It was agreed that there needed to be a range of options available to deal with sexual violence once it has been disclosed. In particular, the defended trial should be only one option, and ideally the one reserved for the most serious type of offending involving concerns of public safety. Aside from supporting the availability of restorative justice to resolve some forms of sexual offending, we therefore also recommend the establishment of a treatment court. This alternative process within the criminal justice system is outlined for further development in Chapter 9.
Two other proposals were considered at the Workshop, neither of which fell within the scope of our project and as such we did not have sufficient time or resources to fully consider them. As they are proposals which we believe require further research and consultation, we merely raise them here and provide our preliminary views.
1 Creation of an absolute liability offence (with a lesser penalty)
Police and prosecutors in particular were attracted to the possibility of a new offence that would allow more charging options. Sector workers noted the difference in experience of the sexual interaction in acquaintance rape cases (as between offender and victim)77 while underscoring the importance of validating the perception of victims in such cases. One proposal was the introduction of an absolute liability offence that would only require the prosecution to prove a complainant’s lack of consent.
Although initially attractive as a way to provide an incentive for a guilty plea and to encourage increased reporting, this option has a number of disadvantages. First, absolute liability offences are traditionally reserved for offences other than true crimes. It would be a very difficult political process to achieve such an outcome. Secondly, it may have the result that less serious offences (or ones that are harder to prove – for example, “acquaintance rape” cases) are not investigated fully and therefore there could be reinforcement of the current message that some rapes are not “real rapes”. Thirdly, if complainants are only in a position of being consulted rather than having decision-making power, they may feel that their experience is being misrepresented when a lower offence is charged.
We are of the view that a better option will be to further develop, or systematically utilise existing work on, sentencing guidelines and provide alternatives within the current system which may increase guilty pleas but not change the nature of the charge. However, the possibility of an alternative charge was strongly supported by those we have spoken to and we believe further consideration should be given to this issue.
2 Community consultation in the development of sentencing guidelines
As noted earlier, there was a general concern expressed that the penalty for sexual violation is too high – or at least that the perceived penalty is too high. As sentencing policy and practices (including the use of Victim Impact Statements) was not within the parameters of our proposal, we are not in a position to recommend change to the maximum penalty for sexual violation. However, given the public perception reported to us – that all offenders are at risk of being imprisoned for 20 years – a perception which is thought to influence reporting rates, we consider that work needs to be done by way of general education. Further, although a guideline sentencing judgment was delivered during the course of this project, R v AM,78 such guidelines have been developed largely without community input, input which we believe is particularly important in this context.79 We are therefore of the opinion that further work needs to be undertaken to consider penalties and sentencing in cases of sexual violence.
3 Disclosure of counselling and medical records
Late in our consultation process, well after the Consultative Workshop, an issue was raised which we have not been able consider in any detail. In a number of overseas jurisdictions, disclosure of a victim or complainant’s medical records (including information about any counselling received) has been a matter of some concern.80 This information may not be used at trial, and may well be privileged, but even the knowledge that the material has been given to the defence or seen by other people may be distressing for the victim. We have been told by those working with victims that once this material has been disclosed, the thought of it being used as a basis for questioning at trial may well lead to withdrawal of the complaint. Recent concern has also been expressed about the extent of disclosure required by ACC,81 and the security of that information once disclosed, before relevant assistance can be granted.
As these were not matters that we were made aware of at a sufficiently early stage of our project, we were not in a position to research the current position. It appears to us the concerns raised also fall outside the scope of our project, except with regard to possible reform of the disclosure and privilege rules. It was not apparent to us, on the basis of New Zealand case law, that reform of the Evidence Act 2006 is pressing in this regard. Further, we are of the view that in order to address the concerns some further examination of the current practices that are adversely affecting victims needs to be undertaken. This may well be an appropriate task for the Law Commission as they consider reform of the pre-trial and trial process more generally.
4 Matters requiring further research and consideration
As well as the three matters outlined above, we have identified a number of other areas and issues which we consider are worthy of further work. They are discussed within each relevant Chapter and are also included in the Executive Summary (Chapter 1). The results of the research we did undertake in order to meet the original project goals are outlined in the context of a discussion of methodology in the next section.
B Project Aims and Methodology
The overall aim of our project was to “investigate any other possible alterations of law and practice within the current criminal justice framework which could increase the effectiveness and accuracy of criminal trials for sexual offences, and alleviate the detrimental effect on victims and other witnesses.”82 We did not begin the project with any specific outcomes or reforms in mind, although it was certainly our goal to address the concerns expressed to the Law Commission whose statement was the impetus for our research.83 In particular, we were not focused on identifying reforms which would reduce the attrition rate or increase the conviction rate, although either or both those outcomes may result from the implementation of a number of our recommendations.
Most of our research consisted of collecting and analysing published material relevant to our aims. This process was begun in September 2009 by Stephanie Grant and Rachel Souness, and later updated by Amy Whittaker and Ellen Thompson between November 2010 and March 2011. We primarily focused on material published since 2005 due to the amount of information, but also because of our previous research in the area. Our literature search included reports, articles and books from 20 different jurisdictions, not including New Zealand. A comprehensive bibliography of the material we found most helpful to our work is included at the end of this book. Literature recording the current concerns of victims and complainants in cases of sexual violence has been drawn on in the previous Part which outlines the current context, as well as at times in the various Chapters in which that information is relevant. Material regarding the discussion and analysis of overseas and local initiatives has also been used to support our recommendations in each Chapter, and the coverage of those Chapters is set out further below.
We also considered material volunteered by people with expertise in particular aspects of the investigation and prosecution of sexual offences and the provision of support to victims of such offending. As stated earlier, we were not engaged in an empirical research project, but we did find it invaluable to talk with those who work with victims of sexual offending, and those involved in the criminal justice process as police, lawyers and judges. As legal academics, we were greatly assisted by hearing the views not only of practitioners but also those of non-lawyers and academics from different disciplines. In particular, early on in our project we were assisted by individuals who contacted us with their perspective, which assisted us in further refining the direction and scope of our project. These included members of the New Zealand Police, Project Restore, TOAH–NNEST, Auckland Sexual Abuse HELP, Rape Crisis, Ngā Kaitiaki Mauri and Doctors for Sexual Abuse Care.
With regard to particular engagement with Māori, we were privileged to be able to meet with members of Ngā Kaitiaki Mauri (NKM),84 in particular Sienna Hamilton-Katene and Sandz Peipi Te Pou. Our early introduction to the significance of “Te Ohākī a Hine” was at a TOAH–NNEST hui (meeting) on 24 November 2009. Subsequent to that hui, we were invited to consider entering into a partnership with NKM during the rest of our research programme, in particular with a view to incorporating a kaupapa Māori85 approach. We met in mid-April 2010, just prior to our trip to Europe, and explored some funding options for employing a Māori researcher who could sit alongside us through the phases of research and policy development. Although this approach was not part of our original proposal, given the way the project had changed, we were committed to finding the necessary resources.
In mid-June we contacted NKM again to re-iterate our desire to set up a kaupapa Māori process, and a meeting was set up for late June. Following that meeting, at which it was agreed that NKM needed to seek further guidance from their wider networks, we asked them to identify the nature of the input they would like; how they would like the issues relating to Māori to be addressed in the final report; and, what issues Māori identify as being most pressing.86 NKM suggested attendance at the next TOAH–NNEST hui in mid-November might be the best time to consider our questions – but they did develop some points of discussion in order “to bring forward a better level of discussion about how Kaupapa Māori approaches to Restoring Mana works and to flesh out possible ways of providing a safe interface.”87 NKM was concerned that one researcher sitting with our team would not provide sufficient cultural safety for that person – further they were unwilling to talk about Māori initiatives until that safety could be assured.
At the November 2010 hui, we were challenged again to identify in what ways we were planning to involve Māori. In December, we invited representatives of NKM to attend our Consultative Workshop in April 2011 and to speak to the issues of concern to Māori in that forum, if they wished. They asked us to identify in advance “what research relevant to Māori needs and outcomes had been included in the project”. We replied:88
As you know, none of the principal researchers for the university research are Māori. We have engaged with as much literature as we can find and have tried to consult personally as well. We do not pretend that we can offer recommendations targeted particularly to Māori needs and outcomes, but we do acknowledge that this work needs to be done and that it is a vital part of any reform of the current process. As [we] discussed with you at the hui last year, we do not think that we have the authority to make recommendations with regard to Māori needs, but we will be sure to take care to signal this as an important issue, and to engage with the issues as far as we are able.
This remained our approach with regard to te ao Māori (the Māori dimension) up to the final stages of this work. The korero (conversation) at the Consultative Workshop was considerably enriched by the contributions of members of NKM, and we have remained mindful of their input when preparing our recommendations, in particular those found in Chapter 9. It is our hope that even though our research did not reflect a kaupapa Māori approach, it nevertheless contains recommendations which, if implemented, will also prove of benefit to Māori to the extent that they must engage with the criminal justice process of the colonisers.89
As one of our aims was to “investigate the merits and the feasibility of adopting an inquisitorial model (or aspects of such a process) for trials of sexual offending”, we needed to gain a full understanding of “inquisitorial” pre-trial and trial process. There are a number of difficulties with accessing material about such processes. First, there is the obvious language barrier. Although there is some information available in English which makes comparisons between adversarial and inquisitorial models – most commonly journal articles or book chapters which compare Germany or France with the USA or England – very little deals specifically with cases of sexual offending and much is out of date. Secondly, very few publications, understandably, are focused just on describing the pre-trial and trial processes in various jurisdictions – and given the many recent changes to criminal procedure worldwide, such descriptions are not always accurate. For these reasons, the researchers arranged to meet with and talk to practitioners, judges, academics and victim advocates in five European civil law jurisdictions during May 2010: Austria, Denmark, Germany, the Netherlands and Sweden. We were able to observe trials in Germany and Denmark (dealing with robbery in Bremen, and assault in Copenhagen). A full list of those we met with in each jurisdiction can be found in Appendices A – E, which also describe the pre-trial and trial processes in those jurisdictions.
The meetings and court observations in the various jurisdictions were invaluable. During this time we were able to understand much of the flavour and dynamics of different trial processes, which would not have been possible by simply reading the available material. We were also able to gather up to date information about recent and proposed reforms and to engage in discussions about the comparative value of various models. During the same time period, we also met with academics and policy makers in England, Ireland and Scotland and engaged in similar conversations about recent initiatives and desirable reforms. Our overseas research was made possible by funding from the Law Foundation, the Law Commission and our respective Universities.
As a consequence of our reading and discussions we were in a position to identify areas of potential reform, and to craft a structure for our consultative process. The formal part of this process was the hosting of a Consultative Workshop in Wellington on 18 and 19 April 2011. The Workshop consisted of six facilitated plenary sessions on different topics, one session in which the participants were split into four groups for directed discussion and a final plenary session in which the small group facilitators reported back to all the participants. A full list of Workshop attendees and speakers can be found in Appendix F.
The topics discussed in the plenary sessions were: the investigative process; matters of procedure; the role of the victim and prosecutor; the impact of the decision-making process; evidence issues and alternatives to the current process. At this stage our papers provided an overview of the various issues and outlined some possibilities for reform in order to stimulate discussion rather than dictate a particular approach. The papers delivered and discussed at the Workshop have been published in a Special Issue of the Canterbury Law Review, along with those from some of the commentators who spoke at the plenary sessions.
The Workshop was a most useful event. Not only did we receive helpful feedback on the various options we outlined, but it was a watershed in our research due to the unanimity of support for developing a range of options. This was only possible because of the varying backgrounds and experience of the participants at the Workshop and their willingness and ability to contribute to the discussion in a frank and helpful manner. We note at this point a similar observation made by Rosemary Barrington at the conclusion of the 1983 Rape Study:90
There is however, a further consideration beyond the changes to the written law and the impact of public participation. The process has focused attention upon rape in New Zealand society, identified those individuals, organisation and institutions which have any involvement with it, and helped them identify them to one another. For example: there is now some communication between police and support groups. … Although there has still been no commitment to providing a network of victim support services or funding to them, or providing any assistance to offenders, the exercise has been a valuable example of how empirical research, legal argument and consultation can be used together in the law reform process, and have wide impact beyond merely changing the written law.
Although, as mentioned at the beginning of this Chapter, it is somewhat disheartening to read of the same challenges in terms of funding and the same need for reform some 27 years later, the current focus on sexual violence has meant that a new set of individuals are talking to each other and working together to bring about change. As a consequence of the Workshop, due to the shared views expressed in that forum and with the assistance of Warren Young of the Law Commission, a Steering Group was set up consisting of representatives from the various groups present at the Workshop: defence counsel, Crown prosecutors, police, victims’ advocates, support workers, treatment providers, policy makers and the judiciary. The purpose of the Steering Group is to provide ongoing input into the development of this project’s recommendations, while also eventually assisting with consultation on the proposals which will form part of the Law Commission’s report to Government. The Law Commission will also be drawing on the work produced in this book as the basis for their report.
Following the Consultative Workshop and the discussions with the Steering Group in early May, the researchers came up with a set of recommendations that were then the subject of further consideration by the Steering Group at the beginning of July and again in late August. The finalised recommendations became the basis for developing the structure of the book – the Chapters of the book contain discussion of the reasons for the recommendations. The Chapters also include consideration of the other options that we do not prefer, as a result of our identification and analysis of those possibilities. These possibilities are primarily drawn from our research about the practices in other jurisdictions.
Chapter 5, “Investigation and the decision to prosecute in sexual violence cases” by Yvette Tinsley, considers the investigation process and the decision to prosecute in sexual violence cases. It describes and analyses some of the key factors that may cause attrition in sexual offending cases, and makes a case for the need for specialist training in the investigation of such cases. The Chapter also evaluates the experience of the United Kingdom with Independent Sexual Violence Advisers and Sexual Assault Referral Centres that provide possible models for adoption in New Zealand. Yvette also considers how the decision to prosecute a sexual offence is made, prosecutions in cases where the complainant has sought to withdraw the complaint, and the use of specialist prosecutors and prosecution teams.
The support desired by a victim of sexual offending, particularly after the decision to prosecute has been made, forms the starting point of Chapter 6, entitled “Complainant desire for information, consultation and support: how to respond and who should provide?”. In this Chapter, Elisabeth McDonald explores the role of the complainant in such cases and the concerns expressed that they are not adequately involved in, or informed of, decisions at critical points. The Chapter then considers the role of prosecutors in such cases and whether overseas experience might suggest changes to New Zealand practice. It concludes with examining the possible participation in sexual offence trials of a legal representative of the complainant, as in Germany, but concludes that a preferable approach within an adversarial model would be the provision of specialised and individual support and advocacy throughout the process.
Chapter 7, prepared by Jeremy Finn, Elisabeth McDonald and Yvette Tinsley, considers the role and performance of decision-makers in sexual offence trials. The Chapter, “Identifying and qualifying the decision-maker: the case for specialisation”, provides an overview of the relevant psychological literature on collective decision-making in order to evaluate the role of the jury in sexual offence cases. The authors then consider whether an alternative to the jury might be preferable in such cases – such as judge alone trials or judges sitting with lay assessors (in the civil law model). The Chapter includes a discussion of the importance of expertise and specialisation of those involved in the trial process, as well as the desirable physical attributes of courthouses.
The admissibility and trial process rules that are of significance in sexual cases are analysed in Chapter 8. “Evidence Issues” is authored by Elisabeth McDonald and Yvette Tinsley and begins by considering the availability of alternative ways of giving evidence, including pre-trial cross-examination. The authors then consider most of the admissibility rules which have significance in trials involving allegations of sexual offending: sexual history evidence; evidence of recent complaint; evidence of a defendant’s previous convictions; hearsay evidence; the use of a defendant’s silence at trial; and, the role of the judge in controlling cross-examination of complainants. The Chapter concludes with a discussion of the use of expert evidence, particularly expert opinion evidence to explain the reasons why a complainant in a sexual offence case might delay making a complaint or may behave in a way which jurors may find difficult to understand. Although the Chapter draws on the approach to these matters in other common law jurisdictions, especially the use of “special measures”, the reform options discussed are very much related to the application and interpretation of the Evidence Act 2006 (NZ).
Yvette Tinsley and Elisabeth McDonald also jointly wrote Chapter 9, already referred to. In “Rejecting ‘one size fits all’: recommending a range of responses”, the authors first consider whether a trial process model in which the judge has a greater role would be possible for New Zealand. After outlining the preliminary proposals for greater child protection options and a “treatment” court for some forms of sexual offending, the authors then engage with the current literature on restorative justice. The Chapter includes a description of the existing models of restorative justice in New Zealand and overseas. It also discusses the special issues that arise for Māori and evaluates arguments about the risks and possible benefits of use of restorative justice processes in sexual offence cases. The authors conclude by acknowledging the importance of educative and prevention initiatives to be evaluated and implemented, as well as law reform, in order to respond to the levels of sexual offending in the community.
We note that although authorship of the different chapters is attributed, the principal researchers have all considered the content of each Chapter. Our recommendations therefore reflect our shared views.
C Terminology Used in this Book
How individuals are referred and how processes are labelled can be a fraught issue. We acknowledge that in making the decisions we have in this book regarding how we talk about various individuals, we have risked annoying some readers (who may have preferred more preciseness, consistency and clarity) or unintentionally upsetting others (who choose to identify their experience differently). To all who fall into either of those categories, we apologise. We have used the following labels and descriptions as it suited our purpose and goals during the writing process – we certainly do hope that the use of this terminology does not distract from our overall message or confuse our readers.
1 Complainant and victim
A complainant is someone who is allegedly the victim of offending and who will give evidence at the trial of the alleged offender. The term is usually only used to describe the victim near or at the time of the trial, and certainly no earlier than when the charge is laid. In this book we tend to use the term in the same way, although we sometimes use it to refer to a victim who is yet to become a complainant, depending on the context.
We do sometimes refer to “victims or survivors” in order to acknowledge that some women choose to identify as one or the other, or sometimes both, at different phases of their recovery process. In this book we have tended to primarily use the word “victim” in keeping with victim discourse and our regular references to victim legislation. This is not done to suggest that victims are not also survivors and it is not our intent to define the reality of those of our readers who have been subject to sexual violence in their lives. Further, although the use of the word “victim” may be inappropriate to some as it suggests that the person’s status as a victim has been acknowledged prior to any legal determination, we prefer to use it prior to such a finding in order to validate the perception of the person harmed.
2 Defendant and offender
Defendant is the term we use to refer to an alleged offender once the decision to charge has been made. It is also the term used throughout the Evidence Act 2006. Such a person may also be referred to as the “accused” or the “suspect”. Depending on the context we may use any of these terms to denote the person a victim has identified as causing her harm.
We have attempted not to have to refer to an offender in the third person, but where we have had to we have elected to use “he” to refer to an offender or defendant and “she” to refer to the victim or complainant. This was done to avoid the overuse use of “her or she” or “him or her” and to reflect the gendered nature of sexual offending against adults.91 However, we do acknowledge that men, including gay men, are also the victims of sexual violence, and women do commit sexual offences. We adopt the shorthand use of the third person primarily for the purpose of ease and clarity of writing, not with the intention of rendering invisible other victims and survivors.
3 Adversarial and inquisitorial
The adversarial trial process is that primarily used in Anglo-American and Australasian countries. It is a party-driven system of dispute resolution, which means, in the criminal context, that prosecuting counsel presents the case against the alleged offender on behalf of the State, while defence counsel is engaged by the individual who is charged. The judge is passive – much like an umpire, even though he or she may ask questions of the witnesses. The fact-finder, whether judge or jury, has no role in the investigative process. We tend to use the term “common law jurisdiction” to describe the countries or States which use an adversarial trial process.
The phrase usually used to describe the main alternative to an adversarial system is “inquisitorial process” – primarily used in civil law jurisdictions, which is why we chose to refer to such models as those used in civil law countries. In this process, although there is significant variation between countries, the judge will play much more of a role at the fact-finding stage and may also have a role pre-trial at the investigative stage. In some “inquisitorial” jurisdictions an examining magistrate will interview the witnesses pre-trial – in most the presiding judge will run the trial, including deciding which witnesses need to be heard at trial and questioning those witnesses before either the prosecutor or the defence counsel.
4 Civil law and common law
Civil law countries are heavily codified jurisdictions – so that judges are not bound to follow previous decisions in earlier cases but are instead required to apply the relevant code. These are also countries that tend to have a more “inquisitorial” pre-trial and trial process.
New Zealand (like England and Australia) is a common law jurisdiction. This means that a court may be bound to apply the decisions of a previous court on a particular matter of law (including the interpretation of a piece of legislation). Not all the law is, however, codified (contained in legislation) – some of it is “common law” which has been developed through the courts. Due to the principle of Parliamentary supremacy judges are bound to apply the relevant legislation and should interpret it in the way that Parliament intended.
In the next Part, we undertake a fuller discussion of the main differences between the two models, in order that readers unfamiliar with the comparisons will more easily understand our references to aspects of each system in later Chapters.
IV “Inquisitorial” vs “Adversarial”
A Inquisitorial Models
This Part gives a general overview description of the “inquisitorial” model of criminal proceedings, comparing it with the historical model of the “adversarial” process. The first thing to note is that although some people refer to “inquisitorial” and “adversarial” systems, these are labels that describe archetypal or theoretical systems, rather than being descriptive of proceedings in any particular jurisdiction. There are no “pure” inquisitorial or adversarial models of criminal procedure in existence today. Instead, most jurisdictions exhibit a hybrid approach, adopting processes that draw both from the inquisitorial and adversarial traditions. However, on the whole, most jurisdictions are firmly situated in one of the traditions, with civil law jurisdictions of continental Europe tending to be more inquisitorial and common law jurisdictions, such as New Zealand, being more adversarial in nature.92
Although comparing the differences between inquisitorial and adversarial systems at a theoretical level gives a good initial understanding of the disparities in the two traditions, one of the aims of the project was to clearly identify the particular aspects of the inquisitorial process that might provide advantages for trying sexual offences in the New Zealand context. In order to analyse the way in which these general inquisitorial processes worked in practice, we focused on the particular criminal procedure of five civil law jurisdictions of continental Europe, namely Germany, Austria, the Netherlands, Denmark and Sweden. For an in-depth analysis of the criminal procedure of each of these jurisdictions, including information obtained during our visits to those jurisdictions in May 2010, see Appendices A–E. The focus of this Part of the Chapter, however, is to set out the general nature of inquisitorial processes and contrast them with the equivalent procedure in an adversarial system.
The traditional description of the inquisitorial model focuses on the investigation and trial of criminal offences by a central judicial authority that acts in a non-partisan way to investigate all the evidence in a disinterested search for the truth.93 The State, through an investigating judge or magistrate, is entrusted to act in the public interest by gathering all the information that is relevant to the offending. Rather than acting as a representative of the prosecution, or of the defence, the judicial investigator must act in a neutral way and gather evidence that might both incriminate, or exculpate, the accused. There are wide-ranging investigative powers to allow this to occur. In this way, the control of the investigation remains in the hands of the State, rather than in the hands of the parties. For this reason, the focus of inquisitorial models of criminal procedure tends to be on the pre-trial stage of the process, with the trial acting more as a check, or confirmation of the evidence that has previously been judicially gathered.94
By contrast, the adversarial process is focused on the trial stage of proceedings, as the concept is often distilled down to the idea that legal proceedings should be arranged as a contest or battle between two parties who control the nature and extent of their dispute and present their evidence for decision by a neutral, impartial adjudicator.95 The focus is clearly on the trial as the point at which the facts are established, with each party presenting its case to the court. The role of the court is simply to rule on the evidence presented to it by the parties. Partly for that reason, common law jurisdictions have developed complex rules of evidence to ensure the reliability of the information presented in court.96
In this Part we go on to discuss in more detail the key differences in process between inquisitorial and adversarial models under a number of headings. First, we examine the investigative stage of the process, including evidence gathering, and the role of the prosecutor. Secondly, we examine the pre-trial stage. Thirdly, we look at the role of the trial within the criminal process as a whole. Finally, we consider the involvement of the victim in the process.
B Investigative Stage
Traditionally, inquisitorial procedure is based on the investigation of criminal offending being undertaken or overseen by a central judicial officer. Typically the scope and control of the investigation is vested in an independent, neutral, State representative, often an examining magistrate or judge, or a prosecutor. This official has wide powers to control the investigation of the offending, which is structured around an official inquiry into events.97 This is one of the major differences between inquisitorial and adversarial systems – inquisitorial systems are strongly rooted in a high degree of trust placed in the State, by way of the independent prosecutor or examining judge.98
While in practice, the precise nature of State control differs between jurisdictions,99 the nature of judicial involvement at the investigative stage of criminal proceedings contrasts dramatically with the very limited role of the judge in the investigatory stage of adversarial systems. Regardless of whether a particular civil law jurisdiction entrusts an examining judge or a prosecutor with the control of the investigatory stage, the role of the head of the investigation is as a neutral, objective State agent, with wide powers to carry out this inquiry. They are responsible for ensuring the investigation is carried out fairly, with all relevant evidence being gathered.100 This will include information that may tend to be exculpatory of the accused’s involvement in the alleged offending.101
The investigation in an inquisitorial system consists of a wide-ranging collection of information, including general information about the accused and their life.102 It will also involve interviewing witnesses, with these interviews being written up and included in the case file, or dossier. Interviewing the accused is likely to be a crucial part of the investigation into any alleged offending. While the accused does not have to answer questions put to him during this stage, in an inquisitorial system there is likely to be an expectation that they will do so, and that they will give truthful answers.103
C Pre-trial Stage
In an inquisitorial system, once the investigation has been completed, the examining magistrate or the prosecutor will decide whether or not there is enough evidence to lay charges. The principle of legality is likely to apply, so that if there is sufficient evidence the prosecutor must proceed with charges.104 This contrasts with the wider degree of prosecutorial discretion usually found in adversarial systems. When charges are laid in an inquisitorial system, the case file or “dossier” comes under the control of the court for the commencement of the trial proper.105 At this point, the control of the proceedings passes to the trial judge, who will decide which witnesses should be called and what evidence is required to be heard at trial.106 This might include requiring further evidence that has not already been put forward in the dossier.107
The dossier consists of all the relevant information collected during the investigation, and forms the basis of the evidence for the trial. As well as evidence relevant to the particular facts of the alleged offending, the dossier will also include more general information about the defendant, such as background information on their upbringing and current circumstances108 – information that in an adversarial system would not usually be collected until sentencing (this is because the inquisitorial process does not hold a separate hearing for sentencing – see below). The dossier will contain all the evidence that was collected prior to trial – and more specifically will include evidence that tends to both prove and disprove the offending (i.e., inculpatory as well as exculpatory evidence).109 As the dossier provides the basis of the evidence for trial, it is vital that it is not only objective, but also complete. This provides a source of protection for the defendant – and the supervisory role of the neutral prosecutor or examining magistrate ensures that the dossier contains all relevant information.110
If the defendant or their representative has not yet had the ability to inspect the dossier in full, they will be given an unrestricted right to access the whole dossier before the trial.111 Either at this stage, or during the investigatory stage, the defendant will be able to suggest additional tests or evidence that should be collected and considered by the prosecutor or investigative magistrate.112 The obvious objection to the creation of the dossier process is that defendants are not given sufficient opportunities to test or rebut the evidence gathered by the State.113 However, this concern may be ameliorated by the faith placed in the competence of judicial officers in inquisitioral systems.114 On the other hand, it does allow evidence to be “frozen” at the time it is gathered – which is likely to be closer to the time of the alleged offending, than can occur in an adversarial process.115 This has the effect of reducing the need for some of the technical rules of evidence around hearsay and the production of witness evidence commonly found in adversarial systems.116
Traditional inquisitorial procedure does not allow investigation or trial to be halted by a guilty plea. The onus remains on the court to ensure the offending has been properly investigated and to weigh all the relevant information before being satisfied that the defendant has committed the crime they have been accused of, even where the defendant has admitted guilt.117 Unlike the adversarial system, where the parties have a degree of control over the process and an offender who pleads guilty in the pre-trial stage will avoid trial and proceed straight to sentencing, all cases in the inquisitorial procedure will proceed to a trial. However, if the defendant has made admissions, this is likely to be reflected in the nature and extent of the subsequent hearing.118
D Role of the Trial within the Criminal Process as a Whole
The inquisitorial process does not draw a sharp delineation between the pre-trial and trial stages. Instead, the criminal process tends to be “continuous” in the sense that while the trial is the culmination of the proceedings, it is just another step in the process, rather than a distinct and independent event.119 This approach, along with the way evidence has been gathered and presented at the pre-trial stage, means trials in traditional inquisitorial systems can look quite different from those in an adversarial system.120 The function of the trial in the inquisitorial system is to inquire into the evidence collected at the investigatory stage, with the judge controlling the evidence they wish to hear and weighing the relative weight of the evidence identified at the investigatory stage.
While traditional inquisitorial procedure placed much less emphasis on oral evidence during the trial, many civil law jurisdictions now require such evidence to be heard during the trial. For example, of the civil law jurisdictions we focused on, both Germany and Austria now operate on the basis of the principle of orality or immediacy, which requires that the fact-finder may only come to a conclusion on oral evidence that is presented to the court.121 While this may be true, because of the structure of the process and the function of the trial in the overall process, trial proceedings in inquisitorial systems tend to be less formal than those in adversarial systems.122 This was certainly true from our observations of trials in Germany and Denmark, where not infrequently the witness, defendant, defence counsel and prosecutor would all go up to the bench together to discuss a portion of the trial dossier – for example, a map or photograph.
In an inquisitorial trial, strictly speaking, there is no prosecution case. The witnesses are not called by the parties, but rather, are called by the court. Most inquisitorial jurisdictions begin with the defendant being questioned, usually by the presiding judge. If necessary, the defendant will then be questioned by the prosecution and defence counsel, although some jurisdictions require that all questioning must be done through the trial judge.123 Other witnesses are then examined in the same way. This is in obvious contrast to the mode and method of questioning in an adversarial tradition.
As the adversary trial is very much in the nature of a contest, each party will present their case. This is done by calling and examining their own witnesses, and cross-examining the witnesses called by the other party.124 The traditional feature of adversarial trials is that witnesses will give their evidence orally and during the course of the trial, with numerous rules governing the way witnesses are examined.125 Of particular note is the manner in which evidence is tested in adversarial systems, with cross-examination used to challenge witness testimony. The use of cross-examination has been documented as being particularly distressing for some victims of sexual violence126 and has been described as an “extraordinarily oppressive way to challenge witness testimony”.127 In contrast to adversarial proceedings, the inquisitorial system does not recognise a distinction between prosecution and defence witnesses, so cross-examination in the same way does not occur. In addition, questioning in an inquisitorial trial usually begins with the judge asking the majority of questions, which may result in witnesses able to give evidence in a freer narrative and in a less confrontational way.128 Arguably, questioning in an inquisitorial setting tends to be different in tone and atmosphere from adversarial trials. However, it is important not to overstate the extent of this difference, as witnesses may still undergo aggressive and humiliating questioning during an inquisitorial process as their evidence is still tested in this way.129
Trials in inquisitorial systems are not generally split into separate stages to determine guilt and then, if required, followed by a sentencing phase.130 Instead, all relevant information is heard in the one trial, with a decision on culpability and sentence delivered simultaneously.
Another key distinction between inquisitorial and adversarial systems is in the make-up of the fact-finder. While New Zealand and other common law systems often involve trial by jury (at least for serious cases), most civil law systems operate under a process of adjudication by professional judges, or a mixed panel made up of professional judges with lay assessors.131 This has an impact on the evidentiary rules of the systems, with inquisitorial procedures generally allowing all relevant information to be assessed by the judges, on the basis that they have the ability to attach the appropriate probative weight to all types of evidence.132 This has potential benefits in allowing witnesses to give their evidence in a freer narrative, unimpeded by the necessity of complying with adversarial rules of evidence.
E Involvement of the Victim
The adversarial conception of a trial involving two opposing parties, operating under an equality of arms is particularly unsuited to recognising and protecting the interests of witnesses.133 In an attempt to mediate these differences and provide adequate safeguards for victims, many common law jurisdictions have enacted a variety of special measures aimed at protecting witnesses. However, these have been difficult to introduce and may in fact give rise to other forms of unfairness.134 As the structure of an adversarial system pits two opposing parties against each other, there is a limited opportunity for the parties to take on tasks that fall outside this role. This is particularly true of the prosecution in an adversarial system, which might find it impossible to combine a protective or advocacy role for victims within the structural constraints of the two party contest.135 Consequently, some commentators view the inquisitorial system as providing a better structure for recognising the interests of witnesses, particularly victims.136
While the inherent structure of an inquisitive trial might be better suited to the recognition and protection of witnesses, it is clear that this factor alone will not provide a panacea for witness discomfort with the requirement to give evidence. In a European study of 20 adult women who had been the victims of sexual assault and were subsequently involved in criminal justice proceedings, participants from Ireland (an adversarial system), France, Germany, Belgium and Denmark (all inquisitorial systems) were questioned about their experiences. While 80 per cent of participants reported negative feelings about testifying, and almost all reported that testifying was very stressful, those from Ireland reported feeling significantly less confident when testifying than those from other states.137 Regardless, 10 out of 15 women reported that during questioning at the trial, there had been some suggestion of victim fault, and a majority of women reported being asked repeated or insensitive and embarrassing questions.138 This suggests that while the structure of the inquisitorial system might lend itself to a better accommodation for witnesses, much will still depend on the attitudes and approaches of the participants involved.139
The other factor identified by the authors of the European study was that victims in the inquisitorial system were all entitled to some form of legal representation, and there was a highly significant relationship between having a lawyer and overall satisfaction with the trial process.140 While the right to legal representation may not be common to all inquisitorial systems, the inquisitorial process does seem to provide more opportunities for victims to be involved in the process, for example through the Nebenkläger or “auxiliary prosecutor” procedure operating in Germany, or the ability to be joined to the proceedings in order to make a compensation claim, as in Austria.141
Although the availability of legal representation is seen as a positive support mechanism for victims of sexual offending, most of the civil law jurisdictions we visited offered little else by way of assistance to victims during their interaction with the criminal justice system. For example, it is unusual for adult victims to be permitted to have a support person with them when being interviewed by an examining magistrate or at trial. Further, the relatively recent procedure for pre-recording an adult complainant’s evidence pre-trial in Austria may actually have the result that the prosecutor decides she will not make a good witness and will drop the case. If the case does proceed to trial, the complainant will also need to give evidence again – if she would prefer not to, this is also likely to result in the case being dropped. Attrition in sexual cases is therefore also an issue in civil law jurisdictions – and the extent to which there are similar patterns of attrition to those in New Zealand and other common law jurisdictions should give us pause before rushing to adopt even the most appealing aspects of those models if the goal for reform is primarily to increase conviction rates. We consider comparative attrition rates in the next Part.
This Part briefly outlines the research undertaken into reporting rates and attrition in cases of sexual offending.142 Attrition is the process by which cases are terminated during their progression through the criminal justice system and the attrition rate generally refers to the proportion of reported offences that do not result in a conviction.143 Attrition is not particular to sexual offence cases. All offending that is reported to the police will inevitably involve some cases that drop out of the system before final disposition, often for good reason. In any criminal justice system there will be a number of points at which this might occur.
It has been argued that attrition could also cover those cases that are not reported to the authorities – in other words, that the first point of attrition is the victim’s decision not to report the offending to the relevant authorities.144 While under-reporting of sexual offences is a concern (both in New Zealand and internationally) as more sexual offences are committed than are reported to authorities, most attrition studies focus only on those cases that are reported. In line with this approach, we treat the reporting of sexual assault cases as a separate, but related, concern from the attrition of these cases in the criminal justice system. This Part will briefly outline the concerns and factors relevant to reporting rates of sexual assault cases, before examining some of the studies and conclusions about attrition in both common law and civil law jurisdictions.
A Reporting Rates
Under-reporting of sexual offence cases is a concern not only in New Zealand, but also around the world. It is well established that many more sexual offences are committed than are reported to police. Numerous studies have investigated the reasons why so many sexual offences go unreported, with commonly occurring reasons including feelings of shame, guilt or embarrassment, apprehension about criminal justice processes and concerns about not being believed.145 This has particular implications for our work in terms of the response of the criminal justice sector, not only during court hearings and trials, but at earlier points in the process, such as the investigation and prosecution of sexual offences. Reporting rates can be seen as an indicator of confidence in the criminal justice system.146 An understanding of the issues surrounding reporting and non-reporting of sexual offences is therefore important in establishing recommendations that might remove some of the barriers currently faced by victims in this area.
Recent research in New Zealand has found that the reporting rate of sexual offences is lower than for other types of offending. The New Zealand Crime and Safety Survey 2009 attempted to measure the nature and extent of crime experienced by New Zealand residents, and included information from people who had not reported offending to the police. The survey found that only 7 per cent of all sexual offences were reported to police. However, this figure was not considered to be statistically reliable because of the low number of sexual offences reported in the study.147 A more accurate indicator of the reporting rate in New Zealand might come from the 2006 New Zealand Crime and Safety Survey, which suggested that 9 per cent of sexual offences came to the attention of police.148 These figures, both under 10 per cent, can be contrasted with the finding in the 2009 survey that 32 per cent of the total number of offences committed in New Zealand were reported to police.149 Whether the figure of 7 per cent from the 2009 survey or 9 per cent from the 2006 survey is used, it is clear that sexual offences as a class are significantly under-reported in comparison to other types of offending.150 In common with specific research into sexual offending, the most frequent reasons given in the 2009 survey for non-reporting of sexual offences were the private nature of the offence as well as shame and/or embarrassment.151
Other research in the New Zealand context tends to confirm that many sexual offences are not reported to the police. The 1983 Rape Study undertaken by the Department of Justice and the Institute of Criminology in Wellington indicated that only around one fifth of victims reported offending to police.152 More recently, the New Zealand Ministry of Women’s Affairs research gathered information from 75 victims who had disclosed an incident of sexual assault to police, a support agency or any other professional any time from the year 2000. Of the 75 participants, 36 (or around one half) said they had reported an incidence of sexual violence to the police.153 Of course, these results are limited by the fact that the sample of victims had all reported the incident of sexual violence to some type of professional, so it is difficult to extrapolate these results to the broader population. Participants in this study were asked why they did not report the incident to the police. The most common reason was a fear of not being believed, followed by the effect on family, shame, and fear of, or relationship with, the offender. Other reasons included victims feeling responsible for the offending and a fear or distrust of the legal system.154
This response is consistent with much of the international experience. A recent review undertaken by Daly and Bouhours analysed 90 empirical studies from Australia, Canada, England and Wales, Scotland and the United States and found that over the last 15 years, victimisation surveys showed an average of 14 per cent of victims reported offending to police.155 A literature review undertaken in England by Professor Liz Kelly for Her Majesty’s Crown Prosecution Service Inspectorate in 2001 outlined studies that reported varying rates of the numbers of sexual assaults being reported to police, ranging from 6 per cent in Canada to 15 per cent in Australia.156 Estimates for the reporting rate in England and Wales ranged from 5 per cent to 25 per cent.157 Kelly noted that many of the factors which either encourage, or deter reporting, can be linked to the “real rape” template, so that the more closely the circumstances of the offending reflect “real rape”, the greater the likelihood it will be reported.158 The impact of the “real rape” template might even influence whether or not the victim identifies the incident that occurred as being a crime.159 One suggestion to counter these concerns is that publicity campaigns be used to challenge and change the attitudes of the general public.160
When discussing reporting rates it is important to keep in mind both the timing of the report and the fact that reports to the police are not always made by victims themselves. Although the most recent study into reporting rates commissioned by the Ministry of Women’s Affairs did not have data available to identify who had reported the offences to police, this information was gathered in the 1983 Rape Study. In only 52 per cent of cases was the report to police made by the complainant. In 27 per cent of cases a friend or relative made the report. A neighbour, stranger or other person reported the remaining cases.161 This may have implications on the eventual classification of cases and contribute to attrition of cases from the criminal justice system. As noted in the 1983 Rape Study, many cases that were classified as a false complaint were reports made by someone other than the victim, and studies in England have shown that at least in some cases where people other than the victim have reported offending to police, later investigation shows that no offence has actually occurred.162 This might not only contribute to a belief that many rape claims are not in fact indicative of an offence being committed, but might also have a negative impact on the credibility of a victim who has made a previous allegation.163
While the data does not allow for easy comparisons, reporting rates in Europe have also been the subject of recent research. A 2009 study by Lovett and Kelly acquired national data about reporting, prosecution and conviction rates for the offence of rape from 25 different countries in Europe,164 building on two earlier studies,165 which allowed the authors to plot trends over time. The study noted that there were difficulties in comparing reporting rates across different jurisdictions (such as differing definitions of rape and the official rules for recording when an offence has occurred for the purposes of national crime statistics). However, reporting rates per 100,000 of the population were considered in order to more accurately enable comparison to occur.166 Sweden had the highest reporting rate of all the countries studied, with a reporting rate of 46.51 per 100,000 of the population. This rate was twice that of England and Wales, and 35 times the rate of the lowest country, Hungary.167 Germany and Austria both had reporting rates per 100,000 of the population that were lower than England and Wales.168
Lovett and Kelly were also able to show that over the last three decades there has been an increase in reporting of rape cases, particularly evident in Northern and Western Europe.169 By contrast, although it was not a consistent pattern, falling reporting rates within the period were mostly confined to Eastern and Southern Europe. It was not entirely clear what caused these changes over time, although the authors noted that the countries with the highest percentage increases in reporting rates of rape were all countries that had extended the legal definition of rape, so that more offences would now fall within this category than under prior definitions. Another possible factor was that the countries with the highest percentage increase were all countries with long-standing women’s movements that have campaigned for gender equality.170 This would tend to support the theory that reporting rates have a link with confidence in the system.
B Attrition Through the Criminal Justice Process
Reporting of sexual offending is only part of the story though. Given the majority of incidents of sexual violence do not even get reported to police, it is vital that the criminal justice system responds sensitively to those offences that are referred to it. Once an offence is reported, there are a number of points during the process at which attrition can occur. A number of studies show that attrition rates are often highest during the investigation phase of the process.171
In New Zealand the most recent available data on the attrition of sexual violence cases in the criminal justice system was undertaken as part of the research commissioned in 2009 by the Ministry of Women’s Affairs (“the MWA attrition study”).172 This study reviewed 1,955 police files that were initially recorded as sexual violation, and tracked their progress from the reporting of the offence through to the disposition of the case, recording the points at which cases dropped out of the system. The broad findings of the study can be shown in brief, with further discussion found below:
1 Attrition at the investigative stage
The MWA attrition study found that 34 per cent of cases were classified as “no offence”. This category included not only those cases where offences were preliminarily recorded as possible sexual violation, but later investigation showed no offence had occurred, but also false complaint or allegations. The classification of cases as “no offence” (or “no crime” in England) has long been a point of discussion, with it being referred to as a “dust-bin” category used for offences that do not fit anywhere else.173 However, it has been argued that the use of the “no offence” label is misleading, because it may contain cases where there is insufficient evidence to proceed, or victims have chosen to withdraw from the criminal justice process.174 Including false complaints within the category of “no offence” may contribute to the perception that many or most rape complaints are false.175 This can have an effect on a victim’s willingness to report to police, because of a fear they will not be believed.
While police policy and practice has changed in the last 30 years, so that there has been a significant decrease in the number of cases categorised as “no offence”, the authors of the MWA attrition study reviewed the files of those cases classified as “no offence” and concluded that at least some of these cases were incorrectly classified.176 In most cases, the victim was unable or unwilling to co-operate, and so it was difficult to establish the validity of the claim, or the authors considered that the notes on the file actually disclosed that an offence had occurred. The authors ultimately considered that around 7 per cent of cases had been misclassified as “no offence”, and that it was unclear from the information they had available about the validity of the classification in a further 9 per cent of cases.177
The “no offence” category of cases also included 8 per cent of total reported cases that were classified as being false complaints, which was defined as a case in which the complainant was charged or warned for making a false complaint. There were a further 4 per cent of cases where the complainant was suspected of making a false complaint.178 There was a higher rate of “false complaint” when victims were young and the offending involved a stranger, or when victims had a psychiatric condition or intellectual disability or had made a previous allegation of sexual victimisation.179 The inclusion of false complaint cases in the “no offence” category has been explained as contributing to the perception that many rape complaints are false allegations.180 This may lead to a culture of scepticism in response to reports of rape, rather than a careful investigation of all reports.181
In addition to the cases classified as “no offence”, the study found a further 36 per cent of cases were disposed of during the police investigative stage. In 24 per cent of all cases a suspect was identified, but no charges were laid. The two most common factors in this category of cases were that the victim withdrew from the process, or that there was insufficient or conflicting evidence compared with cases where charges were laid.182 The other 11 per cent of total cases disposed of during this stage were cases in which no suspect was identified. Similarly to those cases where a suspect had been identified, victim withdrawal and insufficient evidence featured as factors that influenced the outcome, as well as victim intoxication.183
Although not an official police outcome, the authors of the MWA attrition study considered that at least 20 per cent of cases were terminated due to victim withdrawal, most of these at the investigative stage.184 Victim withdrawal included situations where the victim did not want to proceed, or was uncooperative with the investigation. In some cases the file notes gave some indication of the reasons victims did not want to proceed, such as wanting to report the incident but not take further action, the report being made by someone other than the victim (or the victim only reporting because they felt under pressure to do so), the victim having limited recall of the incident or retracting the allegation, or the victim not feeling ready or able to proceed. However, the available information did not allow the authors to conclude whether or not victims were influenced in their decisions to withdraw by the investigative process. This could occur if victims felt police did not believe them, or that the case was unlikely to proceed because of difficulties with the evidence. This concern has been highlighted in England:185
It has often been said that a raised eyebrow can be the difference between a rape victim deciding to continue with a case or to withdraw from the process.
Although there are a number of complex reasons why victims might chose to withdraw from investigations and even if police and support services are particularly sensitive in their dealings with all sexual assault victims, there will always be some victims who choose not to continue with an investigation.186
2 Attrition at pre-trial and trial stages
The MWA attrition study found that overall charges were laid against the suspect (i.e., a prosecution was brought) in just 31 per cent of the total cases. This seems to be in line with international trends in other common law jurisdictions, with an average of around 30 per cent of reported sexual offences proceeding past the police investigation to prosecution.187 However, the prosecution rate was lower for cases of rape (26 per cent). When those cases that were classified as “no offence” were excluded from the total number of cases, the prosecution rate rose to 46 per cent.188 One interesting finding was that cases with multiple offences were much more likely to result in charges being laid than when there was only one offence in the case, so that the offence-based prosecution rate was 49 per cent, much higher than the case-based prosecution rate.189
Of the cases that were prosecuted, the final outcome is summarised below:
In terms of final outcome, the study found that 13 per cent of total cases resulted in at least one conviction on a sexual violation charge. This equated to about 42 per cent of all prosecutions.190 A further 3 per cent of all cases (or 10 per cent of prosecutions) resulted in a conviction on a related charge.191 Of the 13 per cent of total cases resulting in conviction, 5 per cent of total cases were the result of a guilty plea, while 8 per cent resulted from a finding of guilt at trial.192 Again, these figures appear to be broadly consistent with other common law jurisdictions, with Daly and Bouhours’ recent review of empirical studies concluding that the overall rate of conviction for sexual offending reported to the police was 15 per cent.193
Those cases in which the offender was prosecuted, but not convicted, accounted for 18 per cent of the total number of cases (or 58 per cent of those cases that were prosecuted).194 This figure included acquittals at trial as well as cases where the charges were withdrawn or the defendant was discharged:
The defendant was acquitted at trial in 8 per cent of total cases (26 per cent of total prosecutions).195 Of the cases that went to trial, about half resulted in an acquittal – a result that seems to be roughly equivalent to international studies.196
Withdrawn cases amounted to approximately 17 per cent of prosecutions.197 Of these, around half were estimated to have been withdrawn before depositions, with around 22 per cent withdrawn at depositions and 22 per cent withdrawn after depositions. Most cases did not include reasons for the charges being withdrawn, but where reasons were available common themes were victims refusing to give evidence, retracting their statements or lying, as well as victims not wanting to proceed. This category also included cases where defendants had pleaded guilty to other charges in the case.198
Cases discharged by the judge in the case amounted to around 14 per cent of prosecutions.199 This most commonly occurred pre-trial (in 61 per cent of cases), with the case being dismissed or discharged at trial in the remaining 39 per cent of cases.
Perhaps more importantly for our purposes, the authors of the study were able to draw some conclusions about the factors that influence attrition at various stages of the criminal justice process. While many cases did not include information about the relationship between the victim and the defendant, they were still able to conclude that attacks by a stranger were more often associated with false complaints and no offence cases, and had a high attrition rate. However, if they were prosecuted, stranger attacks were more likely to result in a conviction.200 There was a high prosecution rate for cases involving a current partner or boyfriend, but a low conviction rate for sexual violation (although some were convicted of other offences).201 Family members also had a high prosecution and conviction rate, but other offenders known to the victim but who were not in an intimate or family relationship had a relatively high attrition rate at most stages.202 Cases that involved force, threats or injury were less likely to be classified as “no offence” and more likely to result in prosecution and conviction.203
C Attrition in Civil Law Jurisdictions
It is clear that attrition of sexual violence cases is not just a concern for common law countries. The 2009 study undertaken by Lovett and Kelly consisted of an overview of attrition rates in European countries. The authors accessed national data from 25 countries, with the aim of comparing the 2006 reporting, prosecution and conviction rates across countries. However, as the study involved both civil law and common law jurisdictions there was a great deal of variation between countries about the point at which a “prosecution” was launched. Although prosecution in common law jurisdictions generally refers to the intermediate point between investigation and trial, in civil law jurisdictions it often begins at the point at which prosecutors take charge of the investigation. This can vary widely between countries, and may depend on whether the police have the power to discontinue cases or whether it is a mandatory requirement in a particular country that all cases get transferred to prosecutors. These variations meant it was impossible to use the national level data to compare prosecution rates between the different countries.204
Lovett and Kelly were able to compare conviction rates across Europe though. For 2006 these ranged from a high of 85 per cent in Luxembourg, to a low of 3 per cent in Scotland.205 Eight countries had high conviction rates (ranging from 85–26 per cent), 10 had midrange conviction rates (ranging from 25–12 per cent), while four countries had low reporting rates (10 per cent or lower).206 The authors noted that this extensive range in conviction rates raised a number of complex questions. There were some methodological issues, as many countries calculated reports on the basis of offences, while conviction rates are calculated on the basis of offenders, so that conviction rates had the potential to be influenced by cases that either involve serial offenders or multiple perpetrators.207 In addition, the data did not allow convictions for less serious offences to be counted. While the authors were unable to explain the extensive range of conviction rates, they noted that the countries with the lowest conviction rates were all adversarial systems and there seemed to be a strong, although not entirely consistent, relationship between higher reporting rates and lower conviction rates.208 Further work would be necessary to explain the range, which would need to focus particularly on the extent to which non-stereotypical rape was reported and successfully prosecuted.209
However, although the range of conviction rates was enormous, the rates for the civil law jurisdictions on which we focused our research were broadly comparable with the figure of 13 per cent in New Zealand. Sweden’s conviction rate for rape in 2006 was 10 per cent, Germany’s rate was 13 per cent, Austria’s was 17 per cent and Denmark’s rate was 22 per cent.210 Given our intention in studying these jurisdictions was not to look for ways to increase the conviction rate, but rather to assess whether particular processes from civil law jurisdictions would improve the experience of victims engaged in the criminal justice system, the similarities in conviction rates are of no particular concern.
The authors were able to build on their earlier studies to examine changing trends over time. They found that most of the countries studied (17 out of 25) exhibited what they called a “classic attrition trend”. In other words, most countries in Europe showed that over a sustained period of time the rate of reports was increasing, but the conviction rate was falling.211 It is clear that an increase in the reporting rate does not necessarily result in a corresponding increase in convictions.
As rape attrition involves a complexity of different factors that cannot be explored solely from the national data, Lovett and Kelly undertook a more detailed study by tracking 100 reported rape cases from nine different countries (including three of the jurisdictions we focused on in our analysis of civil law systems: Austria, Germany and Sweden).212 This allowed them to draw some conclusions about the point in the process that cases dropped out, as well as some of the factors that influence attrition of rape cases.
Although it is impossible to directly compare with the most recent results from New Zealand, the study does seem to show that a large number of cases drop out before a court hearing is contemplated. In other words, the attrition of cases in the civil law countries we studied mostly occurs at the investigative stage – the same point at which the majority of cases are lost in New Zealand. Across the nine countries where an indepth file review was undertaken, insufficient evidence and decisions by victims were both important factors in cases being discontinued213 (as they were in the MWA attrition study in New Zealand). However, decisions by victims (such as withdrawal, retraction and declining to complete the initial process) were particularly significant in the case of two common law countries (England and Ireland), as well as Portugal.214
There were some important differences between the information found on the countries we focused on. One of the major causes of attrition in Austria was a high proportion of stranger assaults, with the result that 41 per cent of suspects were not identified.215 Germany’s conviction rate in the case tracking study was 10 per cent higher than in the national average study, but it is not clear what caused this.216 Sweden had the highest reporting rate in Europe, but had one of the lowest conviction rates. Despite this, of the cases that did reach court in Sweden, 77 per cent resulted in conviction.217
While it is difficult to compare statistics across different jurisdictions and different criminal justice processes, a finding that the civil law jurisdictions face similar attrition patterns to those present in New Zealand does not mean that we cannot learn from those systems. Our study did not set out to establish a means of increasing the conviction rate. Rather, the focus was more squarely on the experience of victims within the criminal justice system. Reforms aimed at increasing victim confidence and experiences are a valid outcome, even if no change to the conviction rate is recorded. However, even if an analysis of civil law jurisdictions is able to suggest reforms to our system that might improve the experience for complainants, the evidence suggests that participant attitudes to rape and rape myth are still an important consideration. Lovett and Kelly analysed the factors that contributed to attrition of rape cases in Europe, and concluded that “[t]he closer the assault and the suspect were to stereotypes of rape, the more likely they were to proceed through the system.”218
As someone who has been through the judicial system seven times in the last 15 years, I know the failings of our system but I am also hearing very loudly and very clearly from other victims/survivors that our court system does not give justice to victims of sexual violence. Survivors have told me that it is a system that unfairly supports the rights of offenders. Many survivors have complained to me that they experienced only intimidation, re-victimisation and re-traumatisation. Victims/survivors see the need for an overhaul within the court system that includes specialist court support, legal support and reviews of our laws pertaining to rape victims. The courtroom should be about balance, fairness and seeking the truth. Not about trying to discredit a person because of the amount of alcohol consumed or the type of clothing worn or because s/he walked home alone.219
These are the words of Louise Nicholas. Without her courage and willingness to talk about her experiences we believe it is highly unlikely that reform of the prosecution process in cases of sexual violence would be back on the legislative agenda at this time. We owe her much.
As we pointed out at the beginning of this Chapter, notwithstanding decades of well-intentioned and carefully developed reform of substantive and procedural law and practices, there has been very little real change, judging by the indicators of complainant satisfaction and rates of reporting.
Our research and this project is one aspect of the work that needs to be done to effect real change. Our goal was to consider the adoption or development of innovative practices from both here and overseas in order to improve the experience of complainants and the accuracy and effectiveness of the trial process in cases of sexual offending. The most important aim in this area, we believe, is to significantly reduce the prevalence of sexual offending in New Zealand,220 especially that committed against young children. Managing the treatment of victims after that offending as they come into contact with the criminal justice process is therefore just one small part of what must be examined. Notwithstanding that observation, as “the criminal justice system remains an important avenue of redress for some victims”,221 it is a subject worthy of considerable research.
As the impetus for our project came from the words of Sir Geoffrey Palmer, “there could be value in investigating whether the adversarial system should be modified or replaced with some alternative model”,222 we have considered, in particular, whether there should be a move towards adopting more fundamental aspects of “inquisitorial” models. We certainly see the merits of a method of dispute resolution in which the parties have less control over the fact-finding process and there is a more effective mechanism for community involvement. In order for such changes to occur, however, more time than we had available needs to be spent considering how they could be effectively implemented. It is hoped the Law Commission will have the time to do this work – as now is the time, we believe, for bold decisions and bold reforms.
We close this Chapter with the words of the Chair of the Taskforce for Action on Sexual Violence, whose sentiments reflect our own at the conclusion of this project. We repeat them in the sincere hope that in the near future “real justice” will be the outcome provided by the resolution of cases of sexual offending. It is, we believe, finally time for real change.223
[I]t is clear there is considerable work yet to be done. Efforts must be made in the areas of crisis support and recovery services for victims of sexual violence. The prevention of sexual violence will require investment in attitudinal and behavioural change over a long period of time. Improvements to the criminal justice system will need to take place in the immediate and long-term future.
1 Rachel Souness (BA, LLB(Hons)) is a Professional Practice Fellow at the Legal Issues Centre, University of Otago. She was a researcher on the project in 2009 and 2010.
2 Camille E LeGrand “Rape and Rape Laws: Sexism in Society and Law” (1973) 61 CLR 919 at 920 and 941.
3 Ministry of Women’s Affairs Restoring Soul: Effective Interventions for Adult Victim/Survivors of Sexual Violence (Wellington, 2009) at 2 and 40 [Restoring Soul].
4 See Susan Estrich “Rape” (1986) 95 Yale LJ 1087 at 1088 and 1092, for an early definition of “real rape”.
5 Jennifer Temkin and Barbara Krahé Sexual Assault and the Justice Gap: A Question of Attitude (Hart Publishing, Oxford, 2008) at 209 and 211.
6 Rosemary Barrington “The Rape Law Reform Process in New Zealand” (1984) 8 Crim LJ 307 at 322 and 324.
7 Temkin and Krahé, above n 5, at 9–23. See also Part V below.
8 Joan Stone, Rosemary Barrington and Colin Bevan “The Victim Survey” in Institute of Criminology Rape Study Volume 2: Research Reports (Department of Justice, Wellington, 1983) at 52 and 55.
9 Venezia Kingi and others Responding to Sexual Violence: Pathways to Recovery (Ministry of Women’s Affairs, Wellington, 2009) at [7.3.2] [Pathways to Recovery].
10 See, for example, the Crimes Amendment Act 2005, s 7, which amended section 134 of the Crimes Act 1961.
11 See the definition of “sexual case” in s 4 of the Evidence Act 2006.
12 Ministry of Women’s Affairs “Factsheet 2009 – Sexual Violence Research Unit” (2011) <www.mwa.govt.nz/our-work/svrproject/svr-factsheet>.
13 New Zealand Law Commission Disclosure to Court of Defendants’ Previous Convictions, Similar Offending and Bad Character (NZLC IP4, 2007) at 18 [“IP4”].
14 Ministry of Justice “Taskforce for Action on Sexual Violence” (2009) <www.justice.govt.nz/policy-and-consultation/taskforce-for-action-on-sexual-violence>.
15 Ministry of Justice Improvements to Sexual Violence Legislation in New Zealand: Public Discussion Document (Wellington, 2008) [Improvements to Sexual Violence Legislation].
16R v Mangnus HC Auckland CRI 2006-004-7577, 16 August 2007.
17 See for example “Court rules jury not swayed by police rape protests” The Dominion Post (30 August, 2007) <www.stuff.co.nz/national/crime/50243>.
18 Paula Oliver, “Rickards: It’s a matter of pride” New Zealand Herald (6 March, 2007) <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10427201>.
19 New Zealand Law Commission “IP4”, above n 13, at vii.
20 New Zealand Law Commission Disclosure to Court of Defendants’ Previous Convictions, Similar Offending and Bad Character (NZLC R103, 2008) at 18 [Disclosure to Court] at v (emphasis added).
21 Beginning in July 2009, the Law Commission has undertaken “an inquiry into whether the present adversarial trial process should be modified or replaced with an alternative model, with particular reference to cases involving sexual violence”: see <www.lawcom.govt.nz/project/alternative-models-prosecuting-and-trying-criminal-cases>.
22 See for example, Jody Clay-Warner and Callie Harbin Burt “Rape Reporting After the Reforms: Have Times Really Changed?” (2005) 11 Violence Against Women 150.
23 See Taskforce for Action on Sexual Violence Te Toiora Mata Tauherenga – Report of the Taskforce for Action on Sexual Violence, Incorporating Views of Te Ohākī a Hine – National Network Ending Sexual Violence Together (Ministry of Justice, Wellington, 2009) at 138.
24 Ministry of Women’s Affairs Restoring Soul, above n 3, at [1.3] (references omitted).
25 See also Jan Jordan “Beyond Belief? Police, Rape and Women’s Credibility” (2004) 4 Criminal Justice 29; Jan Jordan “Worlds Apart? Women, Rape and the Police Reporting Process” (2001) 41 Brit J Criminol 679; Jennifer Temkin “Plus Ça Change: Reporting Rape in the 1990s” (1997) 37 Brit J Criminol 507.
26 Elisabeth McDonald “‘Real Rape’ in New Zealand: Women Complainants’ Experience of the Court Process” (1997) 1 Yearbook of New Zealand Jurisprudence 59. See also Susan Estrich, above n 4.
27 Allison Morris and James Reilly New Zealand National Survey of Crime Victims 2001 (Ministry of Justice, 2003).
28 Ministry of Women’s Affairs Restoring Soul, above n 3, at 73.
29 See for example, Victorian Law Reform Commission Sexual Offences: Final Report (Melbourne, 2004) at [4.120]–[4.121]; Jennifer Temkin Rape and the Legal Process (2nd ed, Oxford University Press, Oxford, 2002) at 9–10 [Rape and the Legal Process].
30 See Ministry of Women’s Affairs Restoring Soul, above n 3, at 73; Ministry of Women’s Affairs Alternative models within the criminal justice system: How adversarial and inquisitorial justice systems treat sexual violence, and possible measures which the criminal justice system in New Zealand could draw on for victims of sexual violence: Background Paper (Wellington, 2009) at 10.
31 Kingi and others Pathways to Recovery, above n 9, at 174, [11.6.1] (references omitted).
32 Sue Lees “Judicial Rape” (1993) 16 Women’s Studies International Forum 11.
33 Kingi and others Pathways to Recovery, above n 9, at 174, [11.6.1]; Pat Mayhew and James Reilly Victims’ Experiences and Needs: Findings from the New Zealand Crime and Safety Survey 2006 (Ministry of Justice, 2008).
34 Elaine Mossman and others Responding to Sexual Violence: Environmental scan of New Zealand agencies (Ministry of Women’s Affairs, Wellington, 2009) at xxii, 77 and 121 [Environmental Scan]; Michele Burman and others The Law of Evidence in Sexual Offence Trials: Baseline Study (Scottish Executive, 2005) at [9.21]; Sara Payne Rape: The Victim Experience Review (Home Office, 2009) at 14–16; Temkin Rape and the Legal Process, above n 29, at 271–272.
35 Ministry of Women’s Affairs Restoring Soul, above n 3, at 69. See also Sara C Benesh and Susan E Howell “Confidence in the Courts: A Comparison of Users and Non-users” (2001) 19 Behavioural Science and the Law 199 at 210.
36 Payne, above n 34, lists victim needs at 14; Temkin Rape and the Legal Process, above n 29, noting prosecutor treatment has a far greater impact on victim satisfaction than the outcome of the case, at 271–272.
37 See Ministry of Women’s Affairs Restoring Soul, above n 3, at 70.
38 Mossman and others Environmental Scan, above n 34, at xvii.
39 Justice Antony Ellis “The Rape Trial: Are the Scales of Justice Evenly Balanced?” in Juliet Broadmore, Carol Shand and Tania Warburton (eds) The Proceedings of Rape: Ten years’ progress? (Doctors for Sexual Abuse Care (NZ), Wellington, 1996) 82 at 83 [Rape: Ten years’ progress?].
40 Paul Dacre “Defence Counsel’s Perspective” in ibid, 99 at 102.
41 Ministry of Women’s Affairs Restoring Soul, above n 3, at 30. See also Morrison Torrey “When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecutions” (1991) 24 UC Davis L Rev 1013.
42 Liz Kelly, Jo Lovett and Linda Regan A gap or a chasm? Attrition in reported rape cases (Home Office Research Study 293, 2005); McDonald, above n 26.
43 Louise Ellison and Vanessa Munro “A Stranger in the Bushes or an Elephant in the Room? Critical Reflections on the Received Rape Myth Wisdom in the Context of a Mock Jury Study” (2010) 13 New Crim LR 781at 783 [“A Stranger in the Bushes”].
44 Richard B Felson and Paul-Philippe Pare “Gender and the victims’ experience with the criminal justice system” (2008) 37 Social Science Research 202.
45 Temkin and Krahé, above n 5, at 134.
47 Jennifer Temkin “‘And always keep a-hold of nurse, for fear of finding something worse’: Challenging rape myths in the courtroom” (2010) 13 New Crim LR 710 at 714 ff. See also Carol Withey “Female Rape – An Ongoing Concern: Strategies for improving reporting and conviction levels” (2007) 71 JCL 54 at 58 ff; Ellison and Munro “A Stranger in the Bushes”, above n 43; Louise Ellison and Vanessa Munro “Turning Mirrors Into Windows? Assessing the Impact of (Mock) Juror Education in Rape Trials” (2009) 49 Brit J Criminol 363.
48 Ellison and Munro “A Stranger in the Bushes”, above n 43, at 801; Crown Prosecution Service CPS Policy for Prosecuting Cases of Rape (2009) at [5.5].
49 Philip N S Rumney “False Allegations of Rape” (2006) 65 Camb LJ 128.
50 See Crown Prosecution Service Guidance: Perverting the Course of Justice: Charging in cases involving rape and/or domestic violence allegations (2011).
51 Helen Smith “Perverting the Course of Justice by Withdrawing a Truthful Complaint” (2011) 75 J Crim L 181 at 184.
52 Email to the research team, dated 9 May 2011, on file with the authors.
53 Email to the research team, dated 9 May 2011, on file with the authors.
54 Research and official statistics are known to underestimate the extent of sexual violence. Even so, 19 per cent of women and 5 per cent of men surveyed in the 2001 New Zealand National Survey of Crime Victims (Morris and Reilly, above n 27) said they had experienced sexual interference or assault at some time in their lives. See further the discussion of reporting rates at Part VA below.
55 Taskforce for Action on Sexual Violence, above n 23, inside front cover.
56 Jonathan Doak Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties (Hart Publishing, Oxford, 2008) at 249 and 278 ff.
57 See Evidence Act 2006, s 6:
The purpose of this Act is to help secure the just determination of proceedings by –
(a) Providing for facts to be established by the application of logical rules; and
(b) Providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights 1990; and
(c) Promoting fairness to parties and witnesses; and
(d) Protecting rights of confidentiality and other important public interests; and
(e) Avoiding unjustifiable expense and delay; and
(f) Enhancing access to the law of evidence.
58 See pages 282, 286, 305, 312 and 316.
59 Doak, above n 56, at 247.
60 The point made by the correspondent was in fact made by Rape Crisis at the time of the increase in the maximum penalty for sexual violation (including rape) from 14 to 20 years in 1993: see Toni Allwood “Panel Discussion: Commentary on Sentencing” in Rape: Ten years’ progress?, above n 39, at 131.
61 Taskforce for Action on Sexual Violence, above n 23, at 46.
62 Pat Mayhew and James Reilly The New Zealand Crime and Safety Survey 2006: Key Findings (Ministry of Justice, Wellington, 2007) at 53.
63 Ministry of Women’s Affairs Restoring Soul, above n 3, at 39.
64 Ibid at 50; Elaine Mossman and others Responding to Sexual Violence: A review of literature on good practice (Ministry of Women’s Affairs, Wellington, 2009) at [6.8] [A Review of Literature]; Taskforce for Action on Sexual Violence, above n 23, at Appendix X.
65 Taskforce for Action on Sexual Violence, above n 23, at 64; Mossman and others A Review of Literature, above n 64, at 94, Sienna Hamilton-Katene National Stocktake of Kaupapa and Tikanga Māori Services in Crisis, Intervention, Long Term Recovery and Care for Sexual Violence: October 2008–April 2009 (Te Puni Kökiri, Wellington, 2009).
66 Taskforce for Action on Sexual Violence, above n 23, at 64.
68 See for example, Aroha Terry “Marae Justice” in Rape: Ten years’ progress?, above n 39 at 103–108.
69 Mossman and others A Review of Literature, above n 64, at 15–16.
70 The definition of consent was an issue raised for consideration in the Ministry of Justice’s Consultation Paper Improvements to Sexual Violence Legislation, above n 15, at 10 ff. As to reversing the probative onus regarding the element “without believing on reasonable grounds” that the complainant consented in s 128 of the Crimes Act 1961, we tend to the view that although this might have an educative effect and focus the jury on the need to look for evidence of this element, it will usually make very little difference in practice. The evidence offered (by the prosecution or the defence) regarding this element will usually be the same as that offered to establish that the complainant did not consent (which must be proved beyond reasonable doubt). There is also an issue with regard to the presumption of innocence and we therefore think it would be a difficult amendment to achieve politically. Further, if the suggested recommendation to move to judge alone trials is adopted in cases of sexual offending (see Chapter 7), the educative and decision-making impact of such an amendment would largely be otiose.
71 See for example, Kirsten Hanna and others Child Witnesses in the New Zealand Criminal Courts: A Review of Practice and Implications for Policy (AUT, Auckland, 2010); Ministry of Justice Alternative pre-trial and trial processes for child witnesses in New Zealand’s criminal justice system: Issues Paper (Wellington, 2011).
72 Application to the New Zealand Law Foundation, on file with the authors.
73 Email from Denise Lievore, Research Manager, Ministry of Women’s Affairs, 29 May 2009, on file with the authors.
74 Mossman and others Environmental Scan, above n 34, at 21, footnote 11.
75 See for example Taskforce for Action on Sexual Violence, above n 23, at 65–67.
76 This is the lower end of “band one” – see R v AM (CA27/2009)  NZCA 114,  2 NZLR 750 at ff.
77 Neville Robertson and Heather Oulton Sexual Violence: Raising the Conversations – A Literature Review (Department of Psychology, University of Waikato, Hamilton, 2008) at 8 ff.
78R v AM (CA27/2009), above n 76.
79 As it is in cases of domestic homicides – see further the Law Commission’s recommendations following the repeal of the defence of provocation: New Zealand Law Commission The Partial Defence of Provocation (NZLC R98, 2007) at Chapter 6.
80 See Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC) Family Violence – A National Legal Response (ALRC Report 114, 2010) at 70 and 1257–1259, [27.99]–[27.113] [Family Violence], where this is referred to as sexual assault communications privilege; Jennifer Temkin “Digging the Dirt: Disclosure of Records in Sexual Assault Cases” (2002) 61 Camb LJ 126; Simon Bronitt and Bernadette McSherry “The Use and Abuse of Counselling Records in Sexual Assault Trials: Reconstructing the ‘Rape Shield’?” (1997) 8(2) Crim L Forum 259 at 263; Temkin and Krahé, above n 5, at 151ff and 169. See also Criminal Justice Sexual Offences Taskforce Responding to Sexual Assault: The way forward (Criminal Law Review Division, Attorney-General’s Department NSW, 2005) at 169–170.
81 The Accident Compensation Corporation will assess the availability of support for victims of sexual offending. The existence of a “no-fault” compensation scheme for “personal injury by accident” has meant that victims are unable to sue offenders for damages and over time the amount of care available for non-physical injuries has decreased. See further Karen Frewin, Rachael Pond and Keith Tuffin “Sexual Abuse, Counselling and Compensation: Discourses in New Zealand Newspapers” (2009) 19 Feminism & Psychology 29; Judi H Miller “Third-Party Funding and Counselling in New Zealand: Implications for Counselling Services and Professional Autonomy” (2004) 26 International Journal for the Advancement of Counselling 285. See also Louise Delany “Accident Rehabilitation and Compensation Bill: A Feminist Analysis” (1992) 22 VUWLR 79.
82 Application to the New Zealand Law Foundation, on file with the authors.
83 See New Zealand Law Commission Disclosure to Court, above n 20, at v, and accompanying text.
84 Taskforce for Action on Sexual Violence, above n 23, at 89.
85“Maori values and approaches emerging from a Maori world view”, ibid at 140. “A kaupapa Māori approach places an emphasis on collaborating with indigenous communities to design and implement research that is informed by the philosophy and tikanga (values, beliefs and practices) of iwi, hapū and whānau.” Kingi and others Pathways to Recovery, above n 9, at 157.
86 Email to Sienna Hamilton-Katene dated 23 July 2010, on file with the authors.
87 Email from Sienna Hamilton-Katene, 28 October 2010, on file with the authors.
88 Email to Sienna Hamilton-Katene, 11 March 2011, on file with the authors.
89 Mossman and others A Review of Literature, above n 64, at 14–15.
90 Barrington, above n 6, at 325.
91 Ministry of Women’s Affairs Restoring Soul, above n 3, at 12; Mossman and others A Review of Literature, above n 64, at viii and 6.
92 Paul Roberts and Adrian Zuckerman Criminal Evidence (2nd ed, Oxford University Press, Oxford, 2010) at 47.
93 Jacqueline Hodgson “Conceptions of the Trial in Inquisitorial and Adversarial Procedure” in Anthony Duff and others (eds) The Trial on Trial Volume Two: Judgment and Calling to Account (Hart Publishing, Oxford, 2006) at 223–224.
94 Ibid, at 224.
95 Roberts and Zuckerman, above n 92, at 49.
96 Hodgson, above n 93, at 225.
97 Roberts and Zuckerman, above n 92, at 63.
98 Doak, above n 56, at 265.
99 For example, the role of the examining judge was abolished in Germany in 1975 and the investigative stage is now headed by the state prosecution service – see Appendix A. See also Barbara Huber “Criminal Procedure in Germany” in Richard Vogler and Barbara Huber Criminal Procedure in Europe (Duncker & Humblot, Berlin, 2008) at 297.
100 Hodgson, above n 93, at 225.
101 Ibid, at 224; Doak, above n 56, at 265–267.
102 Doak, above n 56, at 266; Mirjan Damaška “Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study” (1973) 121 U Pa L Rev 506 at 535.
103 Doak, above n 56, at 266.
104 Ibid, at 265.
105 Ibid, at 267.
106 Roberts and Zuckerman, above n 92, at 54.
107 Damaška, above n 102, at 559.
108 Doak, above n 56, at 266.
109 Damaška, above n 102, at 535.
110 Doak, above n 56, at 266.
111 Damaška, above n 102, at 533–534 and 559.
112 Ibid at 559; Doak, above n 56, at 266.
113 Roberts and Zuckerman, above n 92, at 55.
114 Louise Ellison argues that the faith placed in confrontation in an adversarial tradition is replaced in the Netherlands with faith in judicial officers and the ability to test evidence in the pre-trial setting: Louise Ellison “The protection of vulnerable witnesses in court: an Anglo-Dutch comparison” (1999) 29 Int’l J Evidence & Proof 29 at 39.
115 Roberts and Zuckerman, above n 92, at 55.
117 Ibid, at 53; Jenny McEwan “Ritual, Fairness and Truth: The Adversarial and Inquisitorial Models of Criminal Trial” in Anthony Duff and others (eds) The Trial on Trial Volume 1: Truth and Due Process (Hart Publishing, Oxford, 2004) at 54.
118 Hodgson, above n 93, at 224.
119 Roberts and Zuckerman, above n 92, at 55.
120 Doak, above n 56, at 267.
121 See Appendix A and B. See also Damaška, above n 102, at 517.
122 Doak, above n 56, at 267.
123 Ibid, at 267.
124 Ibid, at 525; Damaška, above n 102, at 559.
125 Roberts and Zuckerman, above n 92, at 56.
126 Ellison, above n 114, at 31, Kingi and others Pathways to Recovery, above n 9, at 95.
127 McEwan, above n 117, at 59.
128 Doak, above n 56, at 268.
129 McEwan, above n 117, at 59.
130 Damaška, above n 102, at 559 (the notable exception from our research was Sweden).
131 Roberts and Zuckerman, above n 92, at 51.
132 Ellison, above n 114, at 39.
133 McEwan, above n 117, at 61.
135 Roberts and Zuckerman, above n 92, at 63. See also Chapter 6 IV.
136 Doak, above n 56, at 268.
137 Ivana Bacik, Catherine Maunsell and Susan Grogan The Legal Process and Victims of Rape (Dublin Rape Crisis Centre, Dublin, 1998) at 119.
138 Ibid, at 126.
139 See Louise Ellison “A Comparative Study of Rape Trials in Adversarial and Inquisitorial Criminal Justice Systems” (PhD Thesis, University of Leeds, 1997) at 324 ff.
140 Ibid, at 12.
141 See Appendices for further information.
142 The authors acknowledge the research assistance of Fergus Whyte and Sophie Klinger of the New Zealand Law Commission in the preparation of this work on attrition.
143 Jo Lovett and Liz Kelly Different systems, similar outcomes? Tracking attrition in reported rape cases across Europe (Child and Women Abuse Studies Unit, London Metropolitan University, 2009) at 17.
144 Ibid; Kelly, Lovett and Regan, above n 42, at 7.
145 See for example, Kingi and others Pathways to Recovery, above n 9, at 58; Payne, above n 34, at 8; Liz Kelly Routes to (in)justice: a research review on the reporting, investigation and prosecution of rape cases (Child and Woman Abuse Studies Unit, University of North London, 2001) at 9.
146 Lovett and Kelly, above n 143, at 19.
147 Ministry of Justice The New Zealand Crime and Safety Survey 2009: Main Findings Report (Wellington, 2010) at 45 [Crime and Safety Survey 2009].
148 Mayhew and Reilly, above n 62, at 37.
149 A figure which was constant in both the 2006 and 2009 Surveys – see Ministry of Justice Crime and Safety Survey 2009, above n 147, at 45.
150 While the Crime and Safety Survey provides an indication of non-reporting rate, it does suffer from limitations around sampling and around the self-reporting nature of the data, see ibid, at 23–25.
151 Ibid, at 48.
152 Warren Young Rape Study Volume 1: A Discussion of Law and Practice (Department of Justice, Wellington, 1983) at 39.
153 Kingi and others Pathways to Recovery, above n 9, at 57.
154 Ibid, at 58.
155 Kathleen Daly and Brigitte Bouhours Rape and Attrition in the Legal Process: A Comparative Analysis of Five Countries (Griffith University, Brisbane, 2009) at 4.
156 Kelly, above n 145, at 8.
157 Ibid, at 16.
158 Ibid, at 10.
159 Ibid, at 9–10; Kelly, Lovett and Regan, above n 42, at 33; Payne, above n 34, at 10.
160 Payne, above n 34, at 10–11.
161 Michael Stace “Rape Complaints and the Police” in Rape Study Volume 2: Research Reports (Department of Justice, Wellington, 1983) at Table 10.
162 Kelly, Lovett and Regan, above n 42, at 46.
163 Ibid, at 46–47.
164 Lovett and Kelly, above n 143.
165 Liz Kelly and Linda Regan Rape: the Forgotten Issue? A European research and networking project (Child and Woman Abuse Studies Unit, University of North London, 2001) and Linda Regan and Liz Kelly Rape: Still a forgotten issue (Child and Woman Abuse Studies Unit, London Metropolitan University, 2003).
166 Lovett and Kelly, above n 143, at 17–18.
167 Ibid, at 19.
168 Ibid, at 18.
169 Ibid, at 20.
170 Ibid. The countries exhibiting the highest percentage increases in reporting of rape were England & Wales, Ireland, Iceland, Scotland and Sweden.
171 See for example Sue Triggs and others Responding to Sexual Violence: Attrition in the New Zealand Criminal Justice System (Ministry of Women’s Affairs, Wellington, 2009) at 33 [Attrition]; Ibid, at 108–109; Kelly, above n 145, at 16; Daly and Bouhours, above n 155, at 3–4.
172 Triggs and others Attrition, above n 171.
173 Stace, above n 161, at 5.
174 Young, above n 152, at 43.
175 Triggs and others Attrition, above n 171, at 42.
176 Ibid, at 42–46.
177 Ibid, at 46.
178 Ibid, at 43.
179 Ibid, at 81.
180 Ibid, at 42.
181 Kelly, Lovett and Regan, above n 42, at 51–52; Lovett and Kelly, above n 143, at 112.
182 Triggs and others Attrition, above n 171, at 52.
183 Ibid, at 53.
184 Ibid, at 49.
185 Payne, above n 34, at 11.
186 Kelly, Lovett and Regan, above n 42, at 62.
187 Daly and Bouhours, above n 155, at 3.
188 Triggs and others Attrition, above n 171, at 35.
189 Ibid, at 36.
190 Triggs and others Attrition, above n 171, at 58.
191 Ibid, at 58–59. This included related charges of sexual offending, as well as violent offending, with a small number of other charges also present.
192 Ibid, at 57.
193 Daly and Bouhours, above n 155, at 3. This referred to a conviction for any sexual offence.
194 Triggs and others Attrition, above n 171, at 62.
195 Ibid, at 58.
196 Ibid; Daly and Bouhours, above n 155, at 4 and 37.
197 Triggs and others Attrition, above n 171, at 62.
198 Ibid, at 62–63.
199 Ibid, at 62.
200 Ibid, at 80–81.
201 Ibid, at 81.
204 Lovett and Kelly, above n 143, at 20–21.
205 Ibid, at 21.
206 Ibid. Countries with high conviction rates were Luxembourg, Hungary, Lithuania, Slovenia, Latvia, Slovakia, Italy and the Czech Republic. Jurisdictions with mid-range conviction rates were France, Denmark, Switzerland, Austria, Cyprus, Finland, Greece, Belgium, Germany and Portugal. Sweden, Ireland, Scotland, England and Wales all had low conviction rates.
208 Ibid, at 21–22.
209 Ibid, at 22.
210 Ibid, at 21. The authors note that there are some methodological constraints on these figures – for example, the figures may not accurately represent convictions for less serious offending than rape, and the data is unable to take into account disparities in the use of calculations based on offenders rather offences.
211 Ibid, at 22.
212 Ibid, at 17–20.
213 Ibid, at 109.
215 Ibid, at 34.
216 Ibid, at 62.
217 Ibid, at 101.
218 Ibid, at 112.
219 Louise Nicholas, Survivor Advocate, Postscript to the Taskforce for Action on Sexual Violence Report, above n 23, at 79.
220 The Government has in fact committed $1 million over two financial years to support sexual violence prevention education programmes, as one response to the Taskforce Report: <www.justice.govt.nz/policy/crime-prevention/contestable-funding-round-for-sexual-violence-primary-prevention-services>.
221 Ministry of Women’s Affairs Restoring Soul, above n 3, at xi.
222 New Zealand Law Commission Disclosure to Court, above n 20, at v.
223 Belinda Clark, Chair, Taskforce for Action on Sexual Violence and Secretary for Justice, Foreword to Taskforce for Action on Sexual Violence Report, above n 23, at 1.