January 27, 2004
Time to improve a bruising process
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
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
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.
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
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
The adversarial process operates as a contest between the prosecution and
defence as to who can better perform according to a specified set of
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
Eighty-three per cent felt that they, rather than the defendant, were on
State-funded legal representation is provided for complainants in Ireland, Denmark
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.