Comment: The way sexual offences are dealt with in the criminal justice process has spurred public protest, reviews, debate, and reform for at least 40 years.
Over this time, there has been both major and incremental reform of pre-trial and trial processes in sexual violence cases. While these changes have made a difference to the way trials are run, and to the experience of trial participants, significant problems remain at every stage of the legal system’s response to sexual harm.
There is much evidence in Aotearoa and overseas about the problems for complainants in their journey through the criminal trial process and about the thorny issue of jury decision-making in sexual violence cases.
It is well-established that there are many myths and misconceptions about sexual offending in our community, from which juries are drawn. These misconceptions include expectations that rape is physically violent, that victims should fight back, that 'real rape' is perpetrated by 'a stranger in the bushes' and that it is reported immediately.
These myths persist despite overwhelming evidence that many victims delay reporting, that such sexual harm is committed by someone known to the victim, and that not all sexual harm involves physical injuries.
Usually, when jury members bring stereotype and irrelevancy to the deliberation room, other jurors set them straight. This is one of the great virtues of the jury in criminal cases—twelve heads being better (and fairer) than one. But this great virtue falls flat when all or most jurors labour under the same misconception. And so, pervasive myths about sexual violence, being subconsciously accepted by many, aren’t as easily disrupted by the power of the group.
We don’t yet fully understand what the full impact of these myths is, nor how much they affect jury verdicts. As a result, it is also unclear how successful reforms to alert jurors to misconceptions will be: psychological research suggests mixed results.
What is apparent is that further law reform alone—for example, introducing further directions to the jury from the judge or more expert evidence—is unlikely to be a silver bullet. So, too, is a simple move to more judge-alone trials.
What can be done instead? Juror education and learning more about how rape myths affect juror deliberations are options that could be explored. But there is a good case to consider the adoption or expansion of more innovative—and perhaps radical—options to better respond to sexual harm in our community.
There is research underway on alternatives that offer potential for improvement, both within the criminal law and for those who choose not to make a complaint to police. These alternatives include an expansion of Project Restore’s work in using restorative justice processes for rape cases and the use of mediated conversations—between the victim and accused with a trained mediator present—for cases that currently would not reach the threshold for prosecution.
They also include exploring why we have relatively low rates of prosecution, whether the jury is the best decision-maker, and whether different sentencing options could help in lower-risk cases.
It’s been acknowledged for some time that change is needed. Over a decade ago, representatives from across the criminal justice and sexual violence support sectors gathered to discuss the issues covered in From Real Rape to Real Justice: Prosecuting Rape in New Zealand, a book I co-edited with Elisabeth McDonald. What became clear at this meeting is that we need to change the 'one-size-fits-all' approach of our criminal justice response to sexual harm.
There was also remarkable consensus that the mechanisms of our current system led to low reporting and to some of the problems we see in the courts.
There will always be a need for the defended trial and for substantial prison terms, but problems flow when this is the only mechanism to address harm. If we are to reduce the level of sexual harm in our communities, we need to attend to the harms that the criminal justice process does not or cannot itself address.
Given what we know about the difficulties of prosecution, conviction, and the experience of being a complainant in our criminal courts, it is little wonder many victims are reluctant to engage with the criminal justice process. In these cases—and in cases where there is a police report but a decision is made to not prosecute—harm may go unacknowledged and therefore unaddressed.
The issues may be difficult and controversial but law reform over the past 40 years has not resulted in enough improvement.
This article was originally published on Newsroom.
Yvette Tinsley is a professor of Law and co-director of the Centre for Justice Innovation at Te Herenga Waka—Victoria University of Wellington.