A new Law Foundation-backed study will assess whether special court processes used in pilot sexual violence courts are making it less traumatising for complainants to give evidence.
Elisabeth McDonald of the University of Canterbury, assisted by Paulette Benton-Greig of the University of Waikato, will compare procedures used in adult acquaintance rape cases in the pilot courts with a group of similar cases in non-specialist courts.
Professor McDonald says the aim is to ensure that current rules for gathering evidence sensitively from sexual violence victims are being used effectively, as well as whether additional change is needed.
“It’s not the outcomes, it’s the process we are looking at. Are the rules working in practice?” she says. “Cross-examination is the most reform-resistant area of sexual violence court process, yet judges can have more control over the process without a more wholesale move to an inquisitorial model.”
The study will review at least 10 cases from the pilot sexual violence courts in Auckland and Whangarei. The research is supported by Chief District Court Judge Jan-Marie Doogue who, in a recent radio interview, said case processing times in the pilot courts had halved from 18-24 months to around nine months. Judge Doogue added that, anecdotally, lawyers were treating complainants more respectfully in the pilot courts while also robustly defending their clients.
Professor McDonald’s long-standing work in trial process for sexual offences includes the definitive 2011 book From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand, co-authored with Emeritus Professor Jeremy Finn from Canterbury University and Victoria University Associate Professor Yvette Tinsley. It called for alternative ways of dealing with sexual offending, given stubbornly unchanged prosecution rates and high levels of victim dissatisfaction with the system.
In 2015 the Law Commission recommended that specialist sexual violence courts be established, drawing on the recommendations from “Real Rape”, but to date no government action has been taken. The two-year pilot in Auckland and Whangarei, now entering its second year, uses trained specialist judges and is being run by the courts themselves within the existing law.
Professor McDonald says the year-long study would review factors such as the proper application of evidence rules, the frequency of judges’ intervention in questioning, the use of “rape mythology” such as particular forms of complainant behaviour before and after the alleged offence, and closing arguments and judges’ direction to juries.
“I have been working in this area for a long time and I’m convinced we have to do better,” she says.
“The kind of detail that complainants are being expected to remember in court is incredibly challenging, especially after long delays.
“It is far from uncommon for those working in the criminal justice system, including lawyers, police officers and judges, to say they would never encourage a family member to complain of rape. That’s a terrible indictment on the system.”
The cases to be assessed from the pilot courts will be compared with acquaintance rape case details from non-specialist courts that were gathered by Professor McDonald through a separate study between 2010 and 2015.
She says the research is timely and important. “Proponents of procedural law reform in rape cases have been strongly advocating for specialist courts and personnel, so an analysis of the ways that intensively-managed sexual violence trials differ to general trials is urgently needed.
“This research will have significant impact on the New Zealand criminal justice system and contribute to the international discussion about improving law and justice responses to sexual offending,” says Professor McDonald.