Push to ease rape victims' court ordeal

Sweeping changes to the way sexual offence cases are handled by the courts are on the cards as government-ordered research throws new light on how the current system is failing victims.

The Law Commission has been instructed to look into whether an inquisitorial system should be used in sexual abuse cases, amid concern the current adversarial system is defective, and that rapists may be getting off scot-free.

The commission will be working in tandem with legal academics from Victoria and Canterbury universities, who are part-way through a 21-month study into alternatives to the current pre-trial and trial processes for sexual offence cases.

One of the legal academics involved in the study, Professor Jeremy Finn, said the current form of proceedings in criminal trials for sexual offences was widely perceived to be unfair to complainants and likely to lead to undeserved acquittals of offenders.

Possible options for change included the creation of specialist tribunals or courts to hear sexual offence cases and the adoption of some form of inquisitorial procedure.

Inquisitorial procedures could see the investigation in sexual offence cases supervised by a judge rather than the prosecution, and the trial judge, rather than the parties, determining what witnesses were called and how they were questioned.

"The adoption of inquisitorial procedures would be a very major change, but in light of overseas experience suggesting inquisitorial procedures may better safeguard the interests of victims and witnesses, the option should be investigated and evaluated," Finn said.

Law Commission president Sir Geoffrey Palmer has been calling for the government to investigate the merits of alternative systems for trialling sexual offence cases since mid-2008, when the commission released a report prompted by public disquiet over the non-disclosure to the jury of the previous convictions of two former police officers who were tried and acquitted of raping Louise Nicholas.

Justice Minister Simon Power has now instructed the Law Commission to formally investigate whether an inquisitorial system should be used in sexual offending and child abuse cases and to report its recommendations back to him.

"The commission's consultation... sowed the seeds of doubt in our mind regarding the efficacy and fairness of the Westminster-style adversarial trial as it applies to unlawful sex cases," Palmer said in the 2008 report.

A submission by retired Appeal Court judge Ted Thomas had reinforced the commission's concerns: "He told us that the nature and impact of the trial in sexual cases on complainants is a brutalising and distressing experience in which the complainant is effectively put on trial."

People who worked with victims of sexual assault had expressed concern at the low rate of convictions in New Zealand for rape. "They also noted the very low rate of reporting of such offences to the police and attributed this to the fact that the ordeal to which victims are subjected operates as a strong incentive not to make complaints."

Rape Crisis estimates that only one in 10 rapes are reported and only 5% prosecuted. In the 10 years to 2005 an average of 31% of rape charges resulted in convictions.

The National Council of Women, in a submission to the Ministry of Justice, said it supported the use of an inquisitorial system where a magistrate conducts an inquiry into the case because it could provide a fair hearing while offering vulnerable people some safety and protection.

"The present adversarial system does not work for victims of sexual violence. Those who are brave enough to allow their complaint to progress through the police and court systems have a very hard time," the council submission said. "Anecdotal evidence is that the adversarial system is a terrifying process and is unfairly arduous for victims. It can leave a victim more traumatised than if she had not reported the case."

The adversarial system was also "culturally inappropriate for Maori and Pacific women", the council pointed out.

- © Fairfax NZ News