Wednesday, 18 April 2012

Guest Post: Reforms needed for Real Justice

Many thanks to Elisabeth McDonald, Associate Professor of Law at Victoria University, co-author and co-editor of “From ‘Real Rape’ to Real Justice” for this post. Elisabeth teaches and researches in the areas of feminist legal theory, law and sexuality, criminal law and the law of evidence and has been working towards the improvement of legal responses to sexual offending for over 20 years – especially with regard to the trial process. She has also worked with the Law Commission on the reform of the law of evidence, the availability of criminal defences for victims of family violence and the repeal of the defence of provocation.

In April of 2011, a consultative workshop was held at Victoria University in Wellington. The 60 attendees to this invited forum included those involved in the support of victims/survivors of sexual violence, and those who investigate, prosecute and oversee the trials of offenders. The group included politicians, judges, academics, police, prosecutors, defence counsel, sector workers and victim advocates.

Over the two days we had free and frank discussion about the on-going challenges developing and delivering a fair and humane criminal justice response to sexual offending. This much was planned and anticipated. What we did not anticipate was the extent of agreement regarding what the problems are and what the way forward might be. The fact that defence counsel, police, prosecutors, judges and sector workers all agreed on one key point took us by surprise. But it was this agreement that gave us, and the Law Commission, the mandate to attempt to come up with unique options to change the way of dealing with sexual offending. We know that for more than 30 years, victims concerns have been documented and repeated. The changes that have been implemented have not made any appreciable difference to either their experience as complainants, or to the conviction rate for sexual offending. It is time for some bold alternatives.

The point of agreement was that the penalty for sexual violation is too high.

The perception that someone could go to prison for 20 years has a detrimental flow-on effect for the reporting and resolution of this type of offending. This is because victims who know the offender may well only want some acknowledgement of the harm and an apology, rather than the offender being imprisoned. Further, given the low conviction rate for acquaintance rape, an accused will usually plead not guilty rather than risk a term of imprisonment. This means the victim, if there is an acquittal, never gets any kind of acknowledgement of the harm, nor is the offender necessarily deterred from future similar conduct.

This led to the conclusion that other forms of addressing sexual violence are needed that can respond to the needs of victims, as well as broader public interest. The strong message was that there needs to be a range of options available for the resolution of sexual offending (see Chapter 9 of our book). This is not to say that alternatives to the current trial process will be appropriate in all cases – but that in appropriate cases such alternatives could lead to more harm being addressed than is currently the case. This is why it is so important to engage with the Law Commission’s consultation process. It is a rare and valuable opportunity to say what would be a fair and humane criminal law response to victims/survivors of sexual violence.

Greg King, defence lawyer, talks about the need for reform here on the Court Report.

We have until Friday 27 April to let the Law Commission know what we need from our justice system for survivors of sexual violence. You can tell them here, or email at, or post your submission to:

The Law Commission, ATTN: Alternative Trial Processes Consultation, PO Box 2590, Wellington 6140, New Zealand.


Moz said...

Oh ghod. I just spent about 4 hours writing a submission to this. I suggest that unless you have time to read all/most of the supporting material you not read any of it. I found it hard to just read snippets and move on. But also very worthwhile to do so. Obviously, since I spent four hours on it...

Some of the suggested changes will be very good if they get implemented.

The report on jury experiences is also very worth while reading. It's more about the experiences of jurors, but I found it fascinating because of that. What it's like, what's involved, things that jurors often miss (it's easier to apply for extra financial help than you'd think, and many people don't realise they can do so at all).

LudditeJourno said...

Awesome Moz, well done. I will be putting up some more summary stuff to help with this over the next couple of days. Too late for you though :-)

Moz said...

Thanks LJ, looking forward to the summary material. I did find it interesting, and even some of the more technical legal stuff was worth while.

It was a bit hard in places because my experience of the NZ legal system is mostly 20 years old. It was disconcerting that some of the things that no-one even tried to pretend worked 20 years ago are still on the to do list. Not just the blatant "allow the complainant to be forced to relive their experience repeatedly under hostile questioning" but even the really basic stuff like jury facilities - it's still "cram 12 jurors into a tiny airless room and leave them there until they reach a verdict".

At the risk of telling you all about my submission, I found the most obvious deficiency was in the tight restrictions on who gets a support advocate or "translator" in court. One of the key things about victims of sexual violence is that they're often more traumatised than the average theft or fraud victim, and thus will need more support. Even if they're not a child. Sure, kids have fairly well-defined changes in their use of language and their ability to understand things as they get older, and it's helpful if someone tells the jury about that and explains things to the child in a way they can understand, and interprets the kid's answers back to them. But traumatised people sometimes have similar disconnections from "ordinary common sense" let alone "the rational person". Having someone point out that withdrawing when under stress is different from the pause when someone is trying to think up a plausible lie might be useful. Just as one example.

LudditeJourno said...

Moz - absolutely agree. The fact that our criminal justice system has been retraumatising survivors for so long - and we've known about it - is deeply, deeply shocking. All the more reason why we need to grab this opportunity. Thank you for sharing that insight too - again, I absolutely agree. The summary is up now by the way :-) Take care, LJ