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From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand edited by Elizabeth MacDonald and Yvette Tinsley

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Posted 06 March 2012 - 10:19 PM

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REVIEW
From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand edited by Elizabeth MacDonald and Yvette Tinsley (VUP, 2011)
Reviewed by Dr Emily Henderson, crown prosecutor, Marsden Woods, and honorary research fellow, University of Auckland

Despite 30 years of law reform, a new book about the prosecution of rape cases in New Zealand reminds us that we still have a long way to go. Rates of reporting remain low; complainants who do come forward still find trials traumatising, and conviction rates remain low. The question is what more we can and should do.

From “Real Rape” to Real Justice is the latest of several recent studies of the law’s treatment of sexual violence complainants and other vulnerable witnesses in New Zealand. It also comes hot on the heels of the Government’s adoption of several major reforms proposed in those earlier studies, and just as other jurisdictions – especially the UK – contemplate further procedural reform.

Unlike the previous studies, this book does not contain new research about our justice system, building instead upon previous research to generate proposals for reform. It recommends both detailed changes within the current model (including the Evidence Act 2006 – up for review this year), and also broader changes to the system itself, including incorporating aspects of ‘inquisitorial’ justice systems or treatment-orientated and restorative justice models.

Two of the proposals for reforming the current system are particularly interesting. The first is the authors’ approach to meeting complainants’ needs, the second, their approach to prejudices around rape.

Complainant’s needs
The authors stress that complainants need better information, greater involvement in pre-trial decision making, and greater access to protective measures. They propose creating specialist victim advisers to liaise between the professionals and the victim, that prosecutors consult complainants early and often, and that they be required to seek the Court’s directions as to how adult complainants testify, as with child complainants. To reduce the stress and memory deterioration caused by pretrial delays, the authors propose fast-tracking sex cases. Where fast-tracking is impossible, the authors concede vulnerable adult complainants should pre-record their entire evidence (including cross-examination), as has been proposed for child witnesses (and adopted by the government last year).

Juror prejudice
Recent research shows jurors often hold misconceptions about what is “real rape”, limiting their ability to evaluate witnesses’ accounts of their experiences. The authors’ approach is two-fold. They propose, first, specialist training for judges, lawyers, and police to reduce their reliance on prejudice and inappropriate tactics, and to increase their awareness of vulnerable witnesses’ needs. However, while specialisation may improve practitioners’ attitudes, it cannot stop jurors. Given evidence that judicial directions are often poorly understood, further directions are unlikely to assist. Accordingly, the authors propose sex offences are tried by (specialist) judges sitting alone.

Theoretically speaking, it is not true that the jury is essential to a fair trial – as in many cases with the justice system, absolute pronouncements like this are simply wrong. Most trials are already judge alone. Moreover, we accept specialist judges sit alone in serious fraud trials because we acknowledge some issues are beyond the average juror’s competence; a jury can impede a fair trial. The prevalence of misconceptions about rape puts sexual offence trials into the same category. Surely, there is as much public interest in there being a proper investigation in sex trials as in fraud? This proposal deserves serious consideration.

Reform
The final third of the book comprises the broader aspect of the authors’ project – reforming the basis of the criminal justice system rather than the way it operates now.

Many people, casting about for a fix for our system, believe inquisitorial models hold the answer. Few, however, really understand what inquisitorial means. The authors sketch the differences between the inquisitorial model of justice as opposed to our ‘adversarial’ model. They point out what is now a truism in these kinds of reviews: that inquisitorial and adversarial are inadequate labels since most systems contain elements of the other, and share the same fundamental principles (the presumption of innocence, the right to confrontation). Further, inquisitorial systems have their own problems (including, for example, delays before trial). Wholesale conversion is not possible. However, because our systems are in fact more similar than often realised, we might still incorporate aspects of inquisitorial procedure into our system. The authors give a brief but convincing sketch of what such a model might look like. They recommend eschewing the jury in favour of a few lay assessors sitting with the judge and relaxing the rules of evidence to allow greater access to relevant information. Then, to protect witnesses and, not unimportantly, the quality of the evidence, judges would take an active part in policing witness examination, moving away from traditional lawyer-led questioning, whilst giving the parties sufficient opportunity for testing. This sketch is coupled with detailed, first-hand accounts of the criminal procedure in a range of European justice systems, information which is otherwise very difficult to obtain and which will be very useful to future researchers.

However, where this book really takes flight is in its discussion of alternative justice processes. The authors argue for a flexible justice system encompassing a range of possible processes depending upon the needs of the participants and the community.

As uncomfortable as it can be to contemplate a restorative justice approach to such serious offences, many victims of abuse from family members are reluctant to complain to the police for fear that their abusers will be jailed. Similarly, defence counsel say that many offenders who might otherwise plead guilty will defend charges to avoid high penalties on conviction. A less punitive approach might increase both reportage and guilty pleas. Similarly, a sentencing regime which incentivised treatment might persuade more offenders to seek help, thus reducing recidivism.

These are important proposals and they need to be considered.

From “Real Rape” to Real Justice is a thoughtful and thorough analysis of the current situation and offers an intriguing blueprint for future reform and research. The writing is lucid and sober and the logic of their arguments is compelling. Changes must be made. Further, we appear to be in one of those rare periods where there is the governmental will to achieve change – even sweeping change. However, the risk with sweeping change is that if we act too impetuously, good ideas can be destroyed by half-baked enunciation and lack of follow-through. We need to debate the options at length and in detail. MacDonald and Tinsley et al have made a valuable contribution to this discussion.

NZLawyer \\ 24 February 2012 \\ Issue 178
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