Improvements to Sexual Violence Legislation in New Zealand - Home

Introduction

The purpose of this paper

1. This public discussion document seeks your views on a number of possible law changes to the Crimes Act and the Evidence Act. These changes aim to improve the criminal justice response to sexual offending.

2. The paper presents preferred options for three possible law changes. We invite your views on these preferred options and welcome any other comments you would like to make.

3. In addition, this paper includes examples of some alternative models and practices that are designed to provide more positive experiences and outcomes for victims of sexual violence. Your feedback is sought in a more general way on these models and practices before policy options are developed for consideration by the Taskforce for Action on Sexual Violence and the Government.

The problem we want to address

4. Sexual violence is a serious crime that can devastate the lives of victims and their families. The psychological and social impacts of sexual violence are significant. Common feelings and responses experienced by victims may include shock, fear, guilt, shame, depression and inability to trust others. Victims can be left feeling vulnerable, degraded, and lacking in self esteem and self confidence. Their ability to work or function well in society can be affected. According to a Treasury working paper, sexual violence is by far the most costly crime for our country.^[1]

5. Many New Zealanders are victims of sexual violence. A 2001 study found that 19 percent of women and 5 percent of men had experienced sexual violence at some time in their lives. Young women and Maori women are at an even greater risk of becoming victims of sexual violence.^[2]

6. However, people who are sexually assaulted are the least likely of all victims of crime to report to the Police. An estimated 90 percent of sexual offences go unreported.^[3] After allowing for a number of withdrawn cases, a United Kingdom study found that in 2003/4 21 percent of reported rape offences went to court and 12 percent of these resulted in a conviction.^[4] The conviction rate for sexual offences is also lower than for other crimes.^[5]

7. There are many reasons for low reporting of sexual violence. We know from victim surveys that many people choose not to report sexual violence to police because they know their attacker and are afraid that it may make matters worse. Sometimes people feel ashamed by what has happened and don't want other people to know. Others may not report to police simply because they do not think that what happened to them is a crime, or because sexual violation is "something that just happens". ^[6]

8. Victims and the public need to see that sexual violence is taken seriously, that justice is being done, and that this behaviour is not tolerated in our society.

9. Victims of sexual violence, those working in the sexual violence sector, researchers, academics and legal professionals have attributed low reporting to victims fearing the way they may be treated by the criminal justice system, particularly the trial process. Many complainants who have gone through a trial report that they feel their behaviour is scrutinised during the trial process rather than the actions of the accused.

10. There are numerous reasons for low conviction rates. In many sexual violence cases there are no witnesses, little or no physical evidence, and the issue is whether the complainant consented and if the accused had reasonable grounds to believe the complainant consented. The fact that sexual violence is more likely to be committed by a person known to the victim^[7] can further add to the complexity and difficulty in successfully prosecuting this crime.

11. Societal beliefs and assumptions about sexual relationships, sexual norms and gender roles affect conviction rates.^[8] A study undertaken by the Australian Institute of Criminology^[9] found that jurors tend to have preconceived ideas about rape. Expectations about how 'real' victims behave before, during and after an alleged sexual assault impacted on the jurors' perception of the complainants' credibility. The same study highlighted that jurors have difficulty understanding what is meant by the legal definition of consent.

12. Low rates of reporting and conviction call into question the fairness and effectiveness of our justice system in dealing with sexual offending. In turn, concerns about the fairness of the criminal justice process contribute to the substantial under-reporting of sexual offences and may discourage people from giving evidence against alleged offenders. It is a vicious cycle that a number of jurisdictions face.

13. Countries such as the United Kingdom, Canada and Australia have recently undertaken legislative and procedural reforms to assist in creating a legal environment that is more responsive to the needs and rights of complainants, to improve reporting and conviction rates and to hold offenders to account.

14. In some respects New Zealand is further advanced in this area than other jurisdictions. Steps have been taken in the recent past to improve the law relating to sexual violence prosecution. We led the world in 1985 introducing a requirement that there be reasonable grounds for a belief in consent and also in setting out some of the circumstances where consent does not exist. ^[10]

15. However more needs to be done to improve the legal environment for victims of sexual violence in this country and to ensure that the criminal justice system addresses sexual violence in the most effective and responsive way possible.

What we're doing to address the problem

16. Improving reporting and conviction rates for sexual violence requires a multi-faceted approach to address legislative and procedural barriers as well as societal beliefs and attitudes about sexual violence. The Government established the Taskforce for Action on Sexual Violence in July 2007 to provide this multi-faceted approach and to create the government-community partnership required to make further progress on the way sexual violence is addressed in New Zealand. The Taskforce will operate from July 2007 to July 2009.

17. The partnership was established between the government and Te Ohaakii a Hine-National Network Ending Sexual Violence Together (TOAH-NNEST). TOAH-NNEST has membership on the Taskforce and represents 70-80 of the organisations, individuals and academic experts working in the sexual violence sector.

18. To give effect to the partnership approach, TOAH-NNEST has had considerable input into the development and implementation of the Taskforce's work programme. TOAH-NNEST representatives have membership on all work programme project teams to provide expert advice and a community perspective to all aspects of Taskforce work.

19. Fifteen work programme initiatives span the six priority areas outlined in the Taskforce Terms of Reference: prevention, early intervention, recovery and support services, treatment and management of offenders, system responses to sexual offending, and system responses to victims. The full Taskforce Terms of Reference can be found in Appendix One.

20. Legislative amendments alone are unlikely to significantly improve reporting and conviction rates. Therefore, when developing its work programme in late 2007 the Taskforce recognised the importance of being innovative and looking beyond merely making minor improvements to the current system. The Taskforce work programme also includes work to identify and consider alternative models.

21. In a recent report, Disclosure to court of defendants' previous convictions, similar offending and bad character ^[11] , the Law Commission noted the work of the Taskforce and the value of identifying possible modifications to the current adversarial process and alternative models for dealing with sexual violence.

22. Year One for the Taskforce has been focussed on building strong relationships and working closely with experts in the sexual violence community sector. Work has focussed on identifying where there are gaps in policy, practice and service delivery and establishing a sound evidence base to underpin future decision making about investments to improve prevention and responses to sexual violence.

23. Next year the Taskforce will make recommendations to the Government on future actions to prevent and respond to sexual violence in New Zealand.

Footnotes

1. Roper, T. and Thompson, A. (2006) 'Estimating the costs of crime in New Zealand in 2003/04', New Zealand Treasury Working Paper 06/04, New Zealand Treasury, Wellington. This paper established that, on a per criminal act basis, at approximately $72,130 each incident, sexual offences are by far the most costly crime. The next most costly categories of offences were serious traffic offences at $31,210 per crime, and robbery at $23,100 per crime.
2. Morris, A., et al. (2003) The New Zealand National Survey of Crime Victims 2001, Ministry of Justice, Wellington
3. Ibid.
4. Feist, A., et al. (2007) Investigation and detecting recorded offences of rape. Home Office Online Report 18/07.
5. The conviction rate for all sexual offences in 2004-2006 was 46% compared with 55% of all violent crimes and 70% for total crime (statistics supplied by Research and Evaluation Unit, Ministry of Justice).
6. Mayhew, P. and Reilly, J. (2007) The New Zealand crime and safety survey 2006: Key findings, Ministry of Justice and Morris, A., et al. (2003) The New Zealand national survey of crime victims 2001, Ministry of Justice, Wellington.
7. Mayhew, P. and Reilly, J. (2007) (ibid.) state that over a third of sexual offences are committed by a current partner and 25% by a friend.
8. A number of studies have been undertaken in this area. Natalie Taylor's paper "Juror attitudes and biases in sexual assault cases" (2007, Australian Institute of Criminology) gives a good overview of key findings.
9. Australian Institute of Criminology (2005) The impact of pre-recorded video and CCTV testimony by adult sexual assault complainants on jury decision making: An experimental study, Australian Government, Canberra.
10. Crimes Amendment Act (No. 3) 1985 inserted section 128A which sets out some of the circumstances where a person does not consent and section 128 which introduced the notion of reasonable belief in consent.
11. Law Commission (2008) Disclosure to court of defendants' previous convictions, similar offending and bad character, (NZLC R103). Wellington, New Zealand.

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