Incrementalism will only take us so far, writes criminologist Jan Jordan, who argues the ‘system of injustice’ for sexual violence victims requires a transformational approach.
Back in the mid-1990s a New Zealand judge, the Hon Justice E. W. Thomas, wrote an article slamming the lack of justice accorded rape victims by the very system in which he held office. Rape, he said, is “the most vicious and reprehensible crime in the criminal calendar”. Our courts failed such victims, he asserted, a reprehensible occurrence since “the violated woman should not be victimised a second time”. The law changes announced this week by under-secretary to the minister of justice Jan Logie are, he would be pleased to see, oriented towards “ensuring fairness and safety for victims of sexual violence in the justice system”.
The changes proposed include giving sexual violence victims the right to choose by which means they give their evidence in court, training and supporting judges to intervene to protect complainants from inappropriate or aggressive questioning, and ensuring the availability of specialist assistance for witnesses who need it in order to maximise their ability to understand and respond to questions. Changes will also be made to ensure rape complainants can trust that they will not have to share the same waiting spaces and bathrooms as defendants and their family/whanau while attending trials.
These moves deserve to be roundly applauded. They are evidence-based initiatives that should help to prevent some of the most brutalising aspects of the existing system. However, much of what is being mooted could be viewed as basic rights that should have been recognised years ago. When it comes to rape, our justice system still languishes in the dark ages. It is also difficult to comprehend that many of the changes articulated were not introduced by the previous government, given the extent of the information they were provided with from the Law Commission and other sources urging the dire need for reform.
Take the provisions involving making specialist assistance available for rape victims who need it in order to maximise their ability to understand and respond in court. One group of complainants whom this will benefit are those with learning difficulties. These individuals are highly vulnerable to sexual victimisation, yet often struggle to tell their story or to be believed. Speaking out against the justice system’s failure to accord such victims justice, UK professor Betsy Stanko described in The Guardian how the rape of such vulnerable victims had effectively been decriminalised. Given that it is often said that the mark of a just society is how it treats its most vulnerable, this proposed change is indeed long overdue.
All of the changes announced signal a commitment to ensuring safety and fairness, implicitly acknowledging that the existing system fails to deliver either of these. It is difficult to be confident, however, that they will be sufficient to transform the existing system of injustice. While judges will be encouraged to intervene to prevent the worst kinds of abusive cross-examination, the system still in place is an adversarial one of the kind that Justice Thomas slammed more than 30 years ago. Previous legal changes introduced to limit scrutiny of a complainant’s sexual history have failed to prevent defence lawyers from finding ways to raise doubts and cast aspersions over her morality. Moreover, juries sitting on rape cases are likely to comprise individuals who lack any specialist understanding of such critical aspects as rape dynamics, trauma impacts, and counter-intuitive evidence. In the absence of these, chances are high that their attitudes will reflect dominant rape myths and judgments. It is not surprising that victims often describe trial experiences as “a second rape”.
Reforming the current system is laudable, but not if it deflects attention away from the need to explore viable alternatives. Specialist sexual violence courts are currently being piloted with initial positive outcomes, even though these are still conducted with jury trials. These are a beginning, while potential exists for exploring alternatives such as specialist judge-alone courts as well as possibly considering the viability of restorative justice options in appropriate cases.
What is clear is that in recent years there has been growing recognition that rape cases are complex and require specialist training and services. This has long been recognised by our support services, who knew from the 1970s that specialist counsellors were essential. Our doctors developed specialist training for those conducting forensic rape examinations in the 1980s, and in recent years we have seen New Zealand Police recognise the importance of specialist training and supervision for detectives involved in adult sexual assault investigations. Our courts remain as a last bastion, largely resisting the need for specialist interventions and systems. My hope is that the suite of changes proposed this week will help to pave the way for more radical and substantive changes in the future, and that Justice Thomas’s calls for an alternative to the adversarial system will finally be actioned.
Jan Jordan is Professor of Criminology at Victoria University of Wellington, with more than 25 years’ experience researching sexual violence.