Sexual violence justice updates
Fri 08 Sep 2023
This news story highlights updates related to sexual violence justice in Aotearoa New Zealand including: guidance for judges and lawyers on misconceptions, sexual violence monitoring report, and related legislation and court updates.
Misconception guidance for judges and lawyers and published
Te Kura Kaiwhakawā | The Institute of Judicial Studies published Responding to misconceptions about sexual offending: Example directions for judges and lawyers (2023).
It draws on current research to identify what should be considered a misconception, and to provide evidence-based information about the behaviour and responses of victims and offenders. It contains examples of directions that judges can tailor to give to juries to address potential misconceptions about sexual offending. The purpose of giving directions is to reduce the risk that jurors will use false information, sometimes referred to as rape myths.
The guidance, Responding to misconceptions about sexual offending: Example directions for judges and lawyers, was developed in response to new requirements for judges established by the Sexual Violence Legislation Act 2021. Judges are now required to talk to the jury to dispel any misconceptions relating to sexual violence that might have been brought into a case (see section 126A of the Evidence Act). The document is designed to support judges in giving these directions to juries.
It has been made public based on a recommendation from the Law Commission to help prosecution and defence lawyers prepare for sexual violence hearings. The document is available on Ngā Kōti o Aotearoa | Courts of New Zealand website. Te Kura Kaiwhakawā welcomes comments or suggestions about this document. Feedback can be sent to TeKura@justice.govt.nz.
The introduction to Responding to misconceptions about sexual offending: Example directions for judges and lawyers highlights:
"Sexual offending is an area that is commonly misunderstood by people without training or education in the area. Research has shown that jurors may believe myths and misconceptions about sexual offending, and that this can affect how they consider the evidence in sexual cases."
For more information on rape myths and misconceptions about sexual offending in Aotearoa New Zealand see the following open-access books by Elisabeth McDonald:
The wider research team supporting this work included Paulette Benton-Greig, Sandra Dickson and Rachel Souness.
Also see the video recording of the Intimate partner rape and the trial process: Research, reflections and reform event we co-hosted with the Michael and Suzanne Borrin Foundation in March 2023.
New research from Australia has identified that rape myths and stereotypes have persisted in sexual violence court cases despite reforms. Researcher Professor Julia Quilter said:
"Reforms to date have been important, but there are aspects of what makes sexual offence trials so traumatic for many complainants that have not yet been addressed."
"There is scope to do more to improve the experience for complainants, so that stereotypes and narratives that are out of step with contemporary values no longer feature in sexual offence trials".
Read the full report, Experience of Complainants of Adult Sexual Offences in the District Court of NSW: A Trial Transcript Analysis (2023).
Latest sexual violence victimisation monitoring report from MOJ
The Ministry of Justice (MOJ) has published Progression and attrition of reported sexual violence victimisations in the criminal justice system: Victimisations reported April 2017– March 2023. The report looks at data for sexual violence victimisations that are reported to New Zealand Police, and how these cases moved through the criminal justice system. Some key findings from the report include that:
- fewer sexual violence victimisations are resulting in a conviction or prison sentence within two years, as more remain active in court
- sexual violence victimisations are taking longer to get through the court process
- reports of sexual violence have increased for all victims including children and young people, adults and historic child sexual assault.
This is the second annual report looking at these trends. Both reports build on the 2019 report, Attrition and Progression: Reported Sexual Violence Victimisations in the Criminal Justice System. See related reports and factsheets from the MOJ research programme including the new factsheet Child victims of sexual violence in the criminal justice system (2023).
The Victims of Sexual Violence (Strengthening Legal Protections) Legislation Bill and Victims of Family Violence (Strengthening Legal Protections) Legislation Bill passed their first reading and were referred to the Justice Select Committee. At the first reading, Justice Minister Ginny Andersen said:
"These bills address three issues with current legislative settings, and the changes that they will bring are these: addressing problematic lines of questioning and align the penalties of sexual offences when the victim is a child; removing barriers to lift victims' automatic name suppression; and to provide new ways to address litigation abuse in family proceedings."
Update: Submissions are now open and due by 20 October 2023 on both the Victims of Sexual Violence (Strengthening Legal Protections) Legislation Bill and Victims of Family Violence (Strengthening Legal Protections) Legislation Bill.
This legislation is part of the Government's 3-year work programme focused on victims. In addition to the proposed bills, the Government also announced additional support to the Victim Assistance Scheme including a new grant for victims of sexual violence (see the Guidance on Grants Available to Victims of Sexual Violence updated 1 July 2023).
The Government had previously announced new pilots to improve victims’ safety, ensure victims are heard in bail decisions and strengthen support for child victims of sexual violence.
The Parliamentary select Justice Committee has published their final report in response to the petition of Layba Zubair on Consent law reform. In responding to the petition, the Committee noted the recently introduced Victims of Sexual Violence (Strengthening Legal Protections) Legislation Bill proposes changes to ensure that children under the age of 12 would not be questioned about whether they consented to sexual activity. The Committee also stated:
"We agree that the law on consent in this area is due for reexamination. Having a consistent definition of consent in the legislation may help to protect victims of sexual crimes. We think that the Government should consider examining offences involving sexual conduct and consider including a definition of consent in the legislation. We suggest that any such investigation should look at the experiences of sexual violence survivors and experts in the field to ensure that all victims of sexual crimes are appropriately protected by the law."
In a recent Conversation article, Focusing on consent ignores better ways of preventing sexual violence, researcher Nicole K. Jeffrey calls for sexual violence prevention work to move beyond consent and explore ethical values and norms. For related research see the following:
- Is consent enough? What the research on normative heterosexuality and sexual violence tells us (2023) by Nicole K Jeffrey
- Shifting the line: boys talk on gender, sexism and online ethics (2021) from the Shifting the Line project
- Communicating absence of consent is not enough: the results of an examination of contemporary rape trials (2020) by Elisabeth McDonald
- Beyond consent: Sexual violence prevention with young men (2020), lecture from Nicola Gavey
- What does faking orgasms have to do with sexual consent? (2018) by Melanie Beres
Find more research by searching our library under the key term consent. For background information see the overview of sexual violence and the law from TOAHNNEST.
Updates from the Courts
The Chief Justice's Annual Report 2022 was published in August 2023. It provides an overview of all New Zealand Courts, how the Ministry of Justice and judiciary work together, and highlights current justice initiatives. The report notes that work is underway to publish online specialist bench books including the Sexual Violence Trials Bench Book and the Family Violence Bench Book. Bench books are a resource designed for and by judges that bring together up-to-date case law and statute, legal commentary and practice directions. The report also notes that a project trialling a Family Violence Operating Model will begin in 2023 in the Christchurch Family Court (see page 47).
The District Court of New Zealand | Te Kōti-ā-Rohe o Aotearoa's Annual Report 2022 was also published. It provides an update on Te Ao Mārama noting the primary focus in the family justice area will be on care and protection and family violence proceedings (see pages 5 - 6).
Labour MP Angie Warren-Clark's member's bill, Family Proceedings (Dissolution for Family Violence) Amendment Bill, passed the first reading and was referred to the Parliamentary Select Justice Committee in August 2023. The bill would allow a victim of family violence in a marriage or civil union to apply to dissolve the marriage or civil union without waiting 2 years.
Update: Submissions are now open and due by 20 October 2023 on Family Proceedings (Dissolution for Family Violence) Amendment Bill.
In May 2023, a District Court Judge ruled that ACC must provide help to a woman who suffered post traumatic stress disorder due to image-based abuse after a former partner shared an intimate recording without the woman's consent. ACC had initially declined her claim.
The Legal Services Amendment Bill received Royal Assent on 30 August 2023. Minister Ginny Andersen's announcement notes that the bill removes interest on unpaid legal aid debt and removes the one-off $50 user charge paid by most people who receive civil and family legal aid, when their application is successful.