Justice

Overdue changes to ‘harrowing’ court process

Advocates say sexual violence law changes are a long-overdue step in the right direction. But wider attitudinal change, and increases to reporting and conviction rates, are still a long way off.

The Government plans to change the way sexual violence survivors give evidence in an effort to improve their access to justice and protect them from being revictimised and retraumatised.

The changes come as part of a suite of legislative reforms in the justice sector, and sit alongside recent changes to family violence laws.

Despite New Zealand's high rate of sexual violence, conviction rates are low. This reflects issues with reporting rates, a high evidentiary threshold, and the country’s adversarial justice system.

Currently, about 30 percent of sexual violence cases meet the evidentiary threshold needed for police to be able to prosecute. Of the cases that go to trial, the conviction rate is about 35 percent.

These barriers to holding perpetrators to account, and enabling survivors to access justice, have been raised consistently by victims and advocates over the past decade. They say the process can do further harm and deter people from pursuing a complaint through the system.

Survivor advocate Louise Nicholas describes the process as “brutal”, while Victoria University of Wellington criminologist Jan Jordan says rape trials are “harrowing and humiliating”.

The proposed laws, which the Government plans to introduce later this year, included six core changes “to ensure that the justice system, in prosecuting sexual violence cases, does no more harm to victims and survivors”.

They would see a tightening of rules around evidence relating to a complainant’s sexual history. Currently, a survivor’s sexual history could be used in an effort to discredit them.

The changes would also include how survivors give evidence, while giving judges greater power to intervene to stop unfair and inappropriate questioning.

“They’re so long overdue that it’s embarrassing that no previous government has seen fit to address these issues sooner.”

Recent high-profile cases, including the Scott Kuggeleijn rape trials, included lines of questioning that perpetuated rape myths.

Kuggeleijn was acquitted of rape after the first trial resulted in a hung jury. Throughout the second trial, his lawyer Philip Morgan relied on what’s been widely described as problematic and damaging rape myths and victim-blaming narratives, including questions and statements like: “Were you saying ‘no’ but not meaning ‘no’?”; “Did you not recognise that telling him you were on the pill in those circumstances was you telling him you wanted to have sex with him?’."

As well as potentially doing further harm to the survivor, who experts say often feel as if they are the ones on trial, the acquittal reinforced rape culture that still existed in New Zealand.

Other proposed law changes included ensuring specialist assistance would be available for witnesses who needed to understand and answer questions.

Sexual violence survivors would also have the right to choose how they gave evidence – for example by audio-visual link or pre-recorded video.

This gave survivors more choice in how they participated in the process.

“We're still coming out of the dark ages in terms of how we treat rape victims when we expect them to go to court.”

A pre-recorded video would also limit the defence’s ability to ask questions that might not be allowed by a judge but were used to cast doubt in the minds of jurors, such as reference to a complainant’s sexual history.

Evidence given at trial would also be recorded, so it could be replayed at re-trial instead of having to be given again.

Protections for sexual violence survivors giving their victim impact statements in court would also be extended. 

Parliamentary Under-Secretary to the Minister of Justice Jan Logie said everyone who had been harmed by sexual violence deserved to have justice delivered without going through more, avoidable, trauma.

Research consistently shows giving evidence is the hardest part of the justice process for sexual violence victims – regardless of the outcome. 

Fear and anxiety about appearing in court and going through cross-examination has prevented many people from reporting what has happened to them, Logie said.

The proposed reforms are a response to Law Commission recommendations made to the Government earlier this year in its review of the Evidence Act, and reflected the calls for change coming from the sector for over a decade.

“They will make a significant difference for victims and survivors of sexual violence while ensuring trials are a fair and robust process."

Changes long overdue

Louise Nicholas said the changes would be a “brilliant” step in the right direction.

“The proposed law changes will help survivors feel safer and have an opportunity to have a voice in how this trial will be run."

Nicholas said people needed to be held to account for their actions, but said she wasn't sure whether the changes would lift the reporting and conviction rates. However, that wasn’t her primary focus.

“It’s about feeling safe and feeling heard and absolutely being believed.”

Victoria University of Wellington’s Jan Jordan said the short-term impact – if the proposed changes were implemented consistently – would be a safer and more supportive process.

"I don’t think we’re going to have a stampede towards the courtroom."

“They’re so long overdue that it’s embarrassing that no previous government has seen fit to address these issues sooner.”

But New Zealand already had a long way to go to alter perceptions of the justice process, leading to an uptick in the number of people who decided to go through the court system.

“I don’t think we’re going to have a stampede towards the courtroom.”

Jordan said many of the changes were basic, such as not having the survivor share bathroom facilities with the defendant, their family and their associates.

“But we’re still coming out of the dark ages in terms of how we treat rape victims when we expect them to go to court.”

The role of the judge

As mentioned, the proposed changes would give judges certainty around how and when to intervene to stop a problematic line of questioning - something that was not currently clear-cut.

Nicholas said judges were becoming better educated about sexual violence, the impacts of trauma on someone's ability to give evidence, identifying rape myths and stereotypes, and dealing with counter-intuitive evidence.

They were using that knowledge to intervene to stop potentially damaging lines of questioning, and to educate jurors on rape myths.

Some of this education was built on the Sexual Violence Court Pilot, which launched in 2016.

The pilot focused on the judge’s pre-trial case management being more intensive and pro-active in an effort to reduce the length of the process and provide further certainty to victims. It also included specialist training for judges.

"It’s a long-time coming; it’s starting to happen; it’s like a new movement. But we can’t take our foot off the accelerator yet."

Nicholas said education and awareness needed to continue, and be expanded.

Jordan agreed there needed to be more training and preparedness by judges, adding that a case could be made for a wider overhaul of how the justice system dealt with sexual violence cases.

This could mean a shift towards judge-alone trials, or a panel of judges, rather than jury trials, which included people who held troubling misconceptions and beliefs about sexual violence, she said.

More work to come

While sexual violence advocates and experts agreed this was a step in the right direction, the consensus was the work was not over.

Nicholas raised issues with uncertainty for victims around trial timing with reserve trials, as well as the ability to include a survivor’s counselling notes as evidence in some cases, and the role of support people throughout the court process.

Like Jordan, Nicholas believed these changes alone would not lead to a major shift in societal attitudes or reporting and conviction rates, but it would help keep survivors safer.

“It’s a long-time coming; it’s starting to happen; it’s like a new movement. But we can’t take our foot off the accelerator yet,” she said.

The proposed changes, announced on Tuesday, come after an injection of $320 million in the Wellbeing Budget for sexual and family violence prevention and support. The extra funding would cover the implementation of these proposed changes, as well as providing best practice training and education for lawyers and judges involved in sexual violence cases.

The second tranche of family violence law changes came into effect on Monday.

Chester Borrows and Justice Minister Andrew Little are in the midst of working towards justice sector reform. Borrows' advisory board was due to submit its second report, with recommendations, to the Government in August. Photo: Shane Cowlishaw

They also sat alongside wider justice sector reform work currently being carried out by Te Uepū Hāpai i te Ora (Safe and Effective Justice Advisory Group). Te Uepū identified a raft of issues in a first damning report, released last month.

The report’s general findings and themes were not surprising, but the extent to which victims, Māori, offenders and families were failed by the system painted a damning picture.

And in March, at a victims’ hui related to justice sector reform, the Government’s chief victims advisor Kim McGregor called for the reformation of the criminal justice system and how it treated victims.

“Victims of crime suffer not only harm, loss and trauma from the crimes against them. Many also suffer from a lack of justice and or revictimisation from within our inherited, Westminster, offender-centric, adversarial, criminal justice system ...

“While not all victims are the same ... from many victims’ perspectives, it seems there is very little about our current criminal justice system that is just, or is fair,” she said at the time.

Where to get help:

National Rape Crisis helpline: 0800 88 33 00

Safe to Talk national helpline 0800 044 334 or www.safetotalk.nz

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