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The |
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The Public Issues
Committee of the Auckland District Law Society calls for a review of the
procedures by which rape and other sexual offences are tried in the criminal
justice system. Despite there being
many positive reforms of the rape law in the past 20 years it is evident that
there is still a substantial degree of under-reporting of sexual crimes. For
example, Rape Crisis Centre reports that less than a third of the people who
contact it have reported the sexual crime to the police. The social consequences
of non-reporting negatively impact upon society in multiple ways such as
giving perpetrators the message that they can behave in this manner with
impunity and reinforcing for the victim the fact she or he is powerless.
These role modelling patterns and perceptions reverberate out to a wider
circle of friends and family. Such consequences erode and undermine the
criminal justice system itself. It is extremely concerning that there are
aspects of the justice system itself that may inhibit the reporting and
prosecution of sexual crimes. It is frequently reported that victims who do
elect to make a complaint experience the criminal justice system process as a
trauma which is often as destructive as the rape itself. Factors suspected to
affect the reporting and prosecution of these crimes include the long delays
in the case coming to court; the inevitable trauma for the victim of
recounting in public, in evidence in chief and then in cross examination (and
possibly again in re examination) every relevant but intensely private detail
of the sexual crime; including reliving the denigration and humiliation she
or he has experienced; the fact this evidence is being tested in a hostile
public forum by a lawyer whose role in the process is to attack his or her
credibility. The Law Commission has
already proposed alternative ways of hearing evidence which would go some way
to reforming the barbarism of trials of sexual crimes. For example sections
103 and 105 of the proposed Evidence Code (not yet enacted) would enable a
judge to direct that, because of the nature of the proceeding, evidence by an
adult witness should be given while the witness is screened from the
defendant; or by way of video recording made before the trial. The Public
Issues Committee encourages the government to consider these changes. In addition the
Committee urges the government to establish a task force to consider
additional changes to the processes by which sexual crimes are tried so that
victims of sexual crimes are not denied real access to justice. The Task Force should
review current The rape victim being
represented by her or his own lawyer. While the Crown prosecutor fills that
role to some extent there are many respects in which the Crown's interest in
gaining a conviction differs to the victim's specific needs and interests. If
the victim had a lawyer she or he would then be represented at every stage in
the process (as is the perpetrator currently) including the dropping or
reduction of charges; whether a line of questioning should be allowed to be
pursued against him or her; argument upon admissibility of evidence; and,
prior to sentencing, whether and what is the appropriate reparation that
should be paid to the victim. An inquisitorial
process based upon seeking the truth, where the judge inquires actively into
the facts, rather than letting prosecution and defence lawyers fight it out
with all witnesses in an adversarial setting. The complainant and
accused telling their story as it happened i.e. to give narrative evidence as
opposed to having their story forced out via a line of questions. The judge questioning
the complainant and defendant with lawyers representing the parties allowed
to do so only after the judge has done so and only
on supplementary matters. Both parties being
allowed to have a support person with them while they gave their evidence.
Exclusion of insulting, degrading , humiliating and
irrelevant questions. An entitlement to
request and be given breaks in giving evidence. Removal of the right to
silence- presumptions are allowed to be drawn from a decision not to give
evidence. Other aspects of reform
that should also be considered include: A 'reparations' process
to be attached to the criminal process following conviction and prior to
sentencing in which the defendant is called to atone to the victim for the
behaviour he or she has just been convicted of. In the process the victim and
perpetrator would continue to be represented by lawyers. This process could
include the making of apologies and admissions and explanations, if the
perpetrator chose to; the 'hearing out' by the perpetrator of the complainant
and her or his whanau; the payment of reparations
by the perpetrator (which agreement could later become a court order via
sentencing); adequate time for the perpetrator's financial situation to be
fully discovered and properly disclosed during the process and any other
action that would serve the purpose of atonement for the parties. This
process would not work as a reduction in sentencing, except that where
reparations were agreed the judge would make an order for these. Require that matters of
sexual behaviour; responses and consent and the law on these matters be
taught as part of life skills/health studies curriculum. In conclusion the
Public Issues Committee calls for a fairer and more effective outcome for
victims of rape and other sexual offences and for society than currently
exists. While changes should not be made that would erode an accused person's
rights under the New Zealand Bill of Rights Act, law reform is needed to
ensure that perpetrators are held to account and that victims can report
crimes and have these crimes prosecuted in a manner that enables the victim
to survive the legal process and see justice done, the latter being for the
greater social good. |
