Sexual violence: Justice outside the courtroom? A New Zealand proposal

Ms Katherine (preferred name Kate) McKenzie-Bridle1

1New Zealand Law Commission, Wellington, New Zealand

Three quarters of New Zealand women who are sexually violated or abused know their abuser. He is a partner, relative or friend.  Victims want the perpetrator held to account, and to protect themselves and others from further abuse. Yet the vast majority do not report their sexual violence experience to the police. Often this is for fear of how the criminal justice system will treat them as complainants; at other times the concern is focussed on the perpetrator and the almost inevitable prospect of imprisonment that a finding of guilt will raise.

I will argue that the traditional “one size fits all” criminal justice system too often sidelines or undermines victims of sexual violence, both male and female.  Drawing on the work of Kathleen Daly and others, I will outline what victims of sexual violence need from a criminal justice process and contend that, just as there are different circumstances and individuals in each case of sexual violence, the “justice mechanisms” to address sexual violence incidents should be similarly diverse.

The paper will examine one such proposed justice mechanism recommended by the New Zealand Law Commission in its 2015 report “The justice response to victims of sexual violence: criminal trials and alternative processes.”

Briefly, the process would operate outside the court system.  Eligible victims could choose to access an accredited programme provider who would work with the victim to meet his or her “justice goals” – which may or may not involve meeting with the perpetrator. Eligible perpetrators who participated would need to take responsibility for their actions and make a redress agreement. The agreement would be monitored by the provider, who would verify completion to an external body. If the process was successfully completed, a statutory bar would prevent the perpetrator being prosecuted for the same incident of sexual violence.

The government is currently considering this proposal.

Biography:

The first twenty years of Kate’s working life were spent in private practice in civil and family litigation, interspersed with periods working at Community Law centres.  Over this period she focussed particularly on issues affecting women and children. A long held but latent interest in restorative justice led her to train as a facilitator in 2013. After taking up a legal and policy position at the New Zealand Law Commission in 2014, Kate was enabled to combine these interests by working on a proposal exploring an alternative means of resolving incidents of sexual violence outside of the traditional court system. The proposal was part of the Law Commission’s report to the New Zealand government in 2015: “The justice response to victims of sexual offending: criminal alternative criminal trials and alternative processes.” Kate lives in Wellington New Zealand with her husband, three children, and various pets.

About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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