Better system will deliver justice

KIRSTY JOHNSTON
Last updated 05:00 08/12/2013

Rape in NZ: Join the debate

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Sexual violence
NO MORE: Horrified Kiwis are calling for a change to our sexual assault laws.

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Rape. It hinges on two words: Yes. No. One means consent. The other, if ignored, means a crime second only to murder that comes with a punishment of at least eight years in jail.

» Rape in NZ: Join the debate

» Torn to pieces by the system

The law surrounding sexual assault seems black and white. In reality, the picture for rape victims in New Zealand is a dull and depressing grey.

Sexual violence figures show that for every 100 women who are sexually assaulted, only seven will complain to police. Three will get their cases heard in court. Just one will see her attacker convicted.

"Going through a trial is like running the gauntlet to find justice," one rape victim told the recent Law Commission investigation into whether a new sex complaint system was needed. "I was slammed around that courtroom like a tennis ball. Dealing with the abuse is bad enough but then to go through this process slowly kills off any hope of finding peace and normality."

Experts across the sector agree the way we deal with rape is flawed from the ground up. There is a lack of prevention and education. Victims do not want to come forward. Police struggle to get enough evidence to take cases further. Lawyers and judges also accept that reporting sexual violence may not be in the best interests of the victim, with one defence lawyer recently telling researchers he would rarely advise woman to participate in the system: "Alas, I would never advise members of my family to report a rape."

Issues - identified as a lack of funding, the need for a better court system to deal with sexual violence and most importantly, the need for an alternative, non-court complaints system - are well recognised.

Since the Louise Nicholas rape case and subsequent public outrage in 2005, successive governments have commissioned report after report into both our sexual assault laws and sexual violence services. Sensible, widely-supported recommendations have been made but major action is yet to be taken, either due to a political pressure or a lack of cash.

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"Meanwhile," says the director of Rape Prevention Education, Kim McGregor, "we are drowning in work."

McGregor says prevention and front-line services are funded with around $5m each year. Offender treatment programmes get $9m. The cost of each sexual violence incident is $72,000, with a estimated toll of about $1b per year. And every service reports a dire need. Of 12 front-line rape crisis groups asked for their position recently, the majority reported they needed at least $200,000 more each year just to keep their heads above water.

"The funding we receive does not go close to covering the cost of providing the service," one sexual abuse service said. "[It] makes future planning next to impossible, as we never know from one year to the next whether the service will be continued or not."

A social services select committee is examining the make-up of sexual violence services, including the haphazard funding regime where multiple government departments are involved and nothing is certain. Green MP Jan Logie, who pushed for the inquiry, says there is an easy solution - give the front-line services money immediately and go from there.

More difficult to address are the justice issues.

A 2012 report done by the Law Commission into trial processes for sexual assault found not only do we need a specialist sexual violence court, but a whole other system to deal with rape complaints. The report advocated a change to the current system so victims could be more involved. Ideas included complainants being given the opportunity to request a review of the police decision to charge their attacker, sexual violence advisors to help them through the process, and a specialist court system where judges, lawyers and even juries were experts in the field.

Once an offender pleaded guilty, they would be able to be sentenced to treatment instead of incarceration, which happens in other specialist courts such as the Family Violence Court.

It suggested moving to an inquisitorial, instead of an adversorial, system to make hearings less traumatic for victims. However, Justice Minister Judith Collins disagreed with this and she stopped work on the report before it could make final recommendations.

Victoria University sexual violence law expert Elisabeth McDonald said that was akin to throwing the baby out with the bath water. The inquisitorial idea was not essential to the process, she said, but only a small part. She called for the report to be completed. "It needs to be finished so we can have a robust public debate."

The report's second major proposal was more radical. It suggested a need for a non-court system to encourage more women to come forward, with the knowledge they wouldn't be subjected to a trial.

The rationale is this: Rape is most often perpetrated by someone you know. It is difficult to prove. The trial process is long and often involves brutal cross-examination and discussion of a woman's sexual history. Consequences involve up to 20 years in jail so most of the accused will plead not guilty.

Many women both don't want to go through that process or see their rapist - who could be an uncle, brother-in-law, or husband - locked away for so long. But they do want them to get help so other women can be safe. "It would provide an opportunity for a healing process for the victim in a safe, supportive environment where they are in control," the report said. "And it would enable greater participation by the victim and give them validation."

Experts believe the introduction of a non-court system - involving treatment and restorative justice - could mean one in 10 women rather than one in 100 could find justice. More importantly, it is hoped it would provide a trickle-down effect where if more men are held to account, the pervasive culture of shame and blame and harassment and assault will come to an end.

The idea, says the head of sexual abuse service HELP Kathryn McPhillips, is that young men like those in the Roastbusters group - who claimed to get young drunk in order to have non-consenual group sex - would never have believed their actions were ok.

"It's not every man. But there's a culture we would like men to address. And there are a lot of men who are part of this solution," McPhillips said. "The rule used to be that women were respected. That has been damaged and it needs to be repaired."

WHAT WE WANT

Rape prevention, treatment and justice are in crisis in this country. Only 1 in 100 women who are victims of sexual assault will see a conviction in their case. The Sunday Star-Times believes there are three ways to address this issue and is calling on the government for change.

1. A new way of dealing with rape complaints

An alternative system outside the courts which would encourage more women to come forward and report sexual assault. It would give victims the knowledge they could seek redress and see their attacker held to account without having to meet an evidential threshold or be subjected to brutal cross-examination during trial. It would encourage more offenders to admit to what they have done and seek help for their behaviour.

2. Specialised sexual violence courts

Expert judges and lawyers to ensure victims are not re-traumatised during trial. Victim advisors who work with complainants. A process where if the offender pleads guilty, they are referred to a specialist court where sentencing options include treatment rather than solely relying on jail,  and where the victims' views are taken into account.

3. Money

Immediate funding to be made available to the sexual violence support services, including prevention treatment for perpetrators. This will enable the current social services select committee inquiry into the services to focus on where the money goes, not where it is coming from.

- Sunday Star Times

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