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Law Reform Index

The Prosecution of Sexual Offences

NZ Herald
January 27, 2004

Time to improve a bruising process
Catriona MacLennan:
Catriona MacLennan is an Auckland barrister

New Zealand's sexual-offence criminal trial process is a bruising one in which victims are typically left feeling humiliated and powerless. Where consent is at issue, the conviction rate is extremely low, resulting in a lack of confidence in the system.

Now is the time to consider how the process could be improved. The public issues committee of the Auckland District Law Society, in a June 2002 report, called for a review of the procedures for the trial of those accused of rape and other sexual offences.

It said that despite many reforms of the rape laws in the past 20 years, there was still a substantial degree of under-reporting of sexual crimes.

This resulted in perpetrators believing they could act with impunity, while victims felt powerless. Ultimately, that undermined the criminal justice system itself.

The committee urged the Government to establish a taskforce to consider changes to sexual-offence trial processes to ensure that victims received access to justice. It recommended the consideration of a number of options.

These included rape victims being represented by their own lawyers to ensure their input at every stage of the process, and the giving of narrative evidence to allow the complainant and the accused to tell their stories in their own words.

Other suggestions were the use of an inquisitorial process aimed at seeking the truth, with a judge actively inquiring into the facts, and the removal of the right to silence.

The committee proposed that insulting and degrading questions should be banned, and that the judge should question each party first. It said a reparation process following the trial could include the making of apologies and admissions. Matters of sexual behaviour, response and consent could be taught in schools.

A forum held in Auckland last November, attended by judges, police, victims' advocates, academics, prosecutors and defence lawyers, was remarkable for the unanimous agreement on the serious flaws in the present system.

Participants discussed a wide range of options for change to almost all aspects of the process, and many of the ideas are worthy of further consideration.

In South Africa, specialist courts have been established to deal with sexual offences. Research has found high satisfaction with the system, and South Africa now aims to have a specialist sexual-offences court in every city.

The conviction rate for sexual offences in South Africa is more than 80 per cent, compared with 44 per cent in New Zealand. Victoria University law lecturer and researcher Elisabeth McDonald advocates the creation of a pilot sexual-offences court in New Zealand to ensure the speedy progress of cases.

Staff would be trained to deal with the sensitive issues involved. Many parties involved in sexual-offences trials query the lack of judicial intervention when complainants are subjected to oppressive questioning.

Victims may be questioned for hours about matters they find distressing and humiliating, and which they may regard as of little relevance to the key issues.

Judges are typically concerned about ensuring that defendants receive a fair trial and that their defence is not hampered. For that reason they may be reluctant to intervene.

That raises the issue of how appropriate the adversarial trial process is in such cases, and whether greater use should be made of the inquisitorial system.

The adversarial process operates as a contest between the prosecution and defence as to who can better perform according to a specified set of procedures.

The result may have little to do with the events that actually occurred, and may leave the parties involved bewildered and sidelined.

Barrister Paul Dacre told the forum that in cases where a single matter was at issue, he questioned why victims should, in fact, be put through the ordeal of the trial process.

For example, it might be accepted that the complainant had been raped. If identification was the matter at issue, and the victim could not identify the defendant, DNA evidence might be critical.

If that were the case, Mr Dacre suggested that admissions should be made and facts should be agreed before the hearing.

The trial could then be narrowed to the real issue in dispute. He rightly commented that it was a strange society in which there was a specialist commercial court list but no emphasis was placed on the speedy disposal of criminal cases involving vulnerable people.

In countries such as France, Germany, Denmark and Belgium, complainants in sexual-offence trials are represented by their own lawyers.

Studies demonstrate that their satisfaction with the process is higher than in those nations where complainants are not represented. Almost all complainants in the adversarial trial process find their contact with the prosecution unsatisfactory in terms of time and information.

One study found that 70 per cent of complainants considered they were asked inappropriate and irrelevant questions about their dress, behaviour and lifestyle.

Eighty-three per cent felt that they, rather than the defendant, were on trial.

State-funded legal representation is provided for complainants in Ireland, Denmark and Germany when the defendant makes the complainant's sexual history an issue.

These and other suggestions made at the forum deserve detailed consideration as the start of a process to improve the system for trying sexual offences.