Making a ‘brutal’ system better

The justice system does not seem to be a level playing field when it comes to sexual violence. A recent Cabinet paper deftly summarised the difficulties and obstacles in the process. First, most sexual violence goes unreported, and when it is reported, there are ‘‘high rates of attrition’’ between the police investigation and the trial.

Those who report sexual violence risk being further traumatised by their exposure to the justice system, as ‘‘many aspects of a victim’s journey through the system are inconsistent with their recovery’’. In short, the system can exacerbate their trauma rather than offer a way to resolve it. For wider society, it means sexual offenders risk going unpunished.

There is a delicate balance to be struck and law experts and some politicians have grappled with how we maintain the integrity of a justice system and also make it safer for those who have been victims of sexual violence.

Work has been done under successive governments. While former justice minister Judith Collins declined to make recommended changes to sexual violence trials, her successor, Amy Adams, restarted this work after the ‘‘Roast Busters’’ case emerged.

Concerns about the system were already wellestablished. Research in 2009 by the Ministry of Women’s Affairs, Ministry of Justice and New Zealand Police found nearly half of police and more than half of Crown prosecutors would not recommend a close friend or family member who was a victim of sexual violence go through the criminal justice system. One prosecutor said ‘‘the process for complainants in sexual violence cases is brutal, every aspect of the complainant’s character and conduct is questioned and exposed, and the likely outcome is not guilty’’.

A 2015 Law Commission report found an estimated 80 per cent of sexual violence victims opted out of trial due to fears about treatment, seeing the criminal justice system as ‘‘alienating, traumatising and unresponsive’’.

Law changes presented by Under-Secretary to the Minister of Justice Jan Logie will finally go some way to making the system safer and fairer for victims of sexual violence. They include giving victims a choice in how they give evidence and undergo cross-examination, such as by audiovisual link or on pre-recorded video, as well as recording evidence so it can be replayed rather than given again. Rules covering evidence about a complainant’s sexual history will be tightened, to avoid ‘‘unnecessary and distressing questioning’’.

There will be more opportunity for judges to intervene when questioning becomes unfair or inappropriate. Judges will also be able to directly address the myths and misconceptions that still surround sexual violence. These changes address the challenges raised by giving evidence, which Logie described as ‘‘the hardest part of the justice process for sexual violence victims’’.

A further step seems to flow obviously from these changes. Anti-sexual violence campaigner Louise Nicholas has argued myths about rape are often brought into the process by jurors. Removing them would be ‘‘a huge step forward’’ in abolishing such myths.

While not part of the current law changes, Logie has proposed that more work be done on juries in sexual violence cases. Removing them would be controversial, but as the Law Commission noted and the Cabinet paper summarised, the nature of sexual offending means it is not well-suited to factfinding by a jury of 12 laypeople.

Judges will also be able to directly address the ... misconceptions that still surround sexual violence.