Raped and abused women should not be ‘revictimised’ by cross-examination in court, Auckland seminar told.
Sexual violence survivors are launching a push for alternatives to jury trials in a bid to avoid retraumatising victims.
Speakers at a seminar in Auckland yesterday said fundamental changes were needed so raped and abused women were not “revictimised” by lawyers’ cross-examination of their sexual histories in front of juries, while offenders could stay silent.
Justice Minister Judith Collins has halted work on proposals in a Law Commission issues paper last year to change the adversarial court system to an “inquisitorial” system where a judge controls what evidence is presented and how it is given, questions witnesses before letting lawyers fill in the gaps, and requires defendants to give evidence first.
She said last September that it would not be practical to have an inquisitorial system for sexual offences but not for other cases, because sexual offenders might also face other charges.
But former Law Commission deputy head Dr Warren Young told the seminar the Government might still be open to alternative processes for certain cases, because many victims did not want to go to court.
“The court system does not deal well with most sexual offences, and as a result people who need to be held to account for their behaviour are not held to account,” he said.
“So what we need to think about is an alternative process outside the criminal justice system for those sorts of cases that the court system is ill-suited to deal with – a process that victims will opt into at their choice.
“There will be an assessment by specialist providers about whether it will be workable for them, including safety issues. The process will be tailored to particular cases and will be oriented to trying to achieve a good outcome.
“There will be agreement about when, if the process fails, it is referred back to the criminal justice system, but if the accused participates fully there will be no referral back to the criminal justice system.”
Only about one sexual offence in every 100 leads to a conviction. A survey had found only 7 per cent of sexual offences were reported, and a 2009 government study found only 13 per cent of cases reported to police lead to a conviction.
Police classified 34 per cent of reported cases as “no offence”. Offenders could not be identified in a further 11 per cent of cases, they were identified but not prosecuted in 24 per cent of cases, and were prosecuted but not convicted in the remaining 18 per cent of cases.
This year’s Budget provided an extra $4.4 million over two years to refer an extra 3000 cases a year, including about 50 sexual violence cases, to restorative justice.
Paulette Benton-Greig of Project Restore, a restorative justice provider specialising in sexual abuse cases, said most victims’ overriding concern was to stop a repeat of the offending, rather than to seek punishment.
But Victoria University associate professor Elisabeth McDonald said restorative justice was allowed only after someone had been found guilty, and it needed to be instead of court.
Dr Young said the Law Commission consulted former judge and Governor-General Dame Silvia Cartwright before beginning its inquiry and was struck by her comment: “If I had a daughter who was raped, I would strongly advise her not to go near the criminal justice system.”