Cross-Examination: The Underlying Concerns of the IPCA Report and the Role of Police Conduct in the Access of Justice

EUGENIA WOO

The recent Independent Police Conduct Authority (IPCA) report on the Roast Buster’s sexual assault debacle was vocal in its condemnation of the police force and the way in which they handled the case in question. The findings of the report have raised a number of underlying concerns regarding the police force in general, encouraging a re-examination of the force’s role in access to justice for sexual assault victims. The most conspicuous question raised by the report is perhaps  why police conduct appears to be so deficient in sensitivity towards sexual assault victims to many. Consequently, it also raises the possibility that New Zealand should look to other jurisdictions who might be treating similar issues more effectively.

First, is the Road Busters debacle a result of a systemic failure by the police or a one-off problem? This question has been asked by many — most vocally perhaps by Dr Bryce Edwards in his article for the New Zealand Herald, where he takes a strong stance on not placing too much confidence in the police while calling for reform.[1] The IPCA report scrutinised the police conduct in this case and found incidences where police did not follow up on specific lines of inquiry, did not link related incidents, and failed to capitalise on “opportunities or interventions to prevent re-victimisation”[2]. Also, one of the reasons cited by the IPCA regarding the lack of prosecution against the Roast Buster’s perpetrators despite the legal threshold being met (and the presence of aggravating factors) was the police’s attitude. For many, those failures seem to be errors in basic police work and the force has been maligned in mainstream media for this latest debacle.  On the other hand, the generalisation of the IPCA verdict by branding the force as insensitive to sexual assault issues is too simple; the police may face significant challenges in less clear cut cases in prosecuting sexual assault offences.

There is a sense of urgency in the need to address this problem. Statistics tabled over the past couple of years show that though crime rates have dropped in the past few years, instances of sexual assault have risen.[3] Data collected by Statistics New Zealand between 2012 and 2014 shows that recorded sexual assault offences have risen over 10 per cent in that period while the overall rate of criminal offending has decreased by close to 12 per cent. Of the number of sexual assault and related offences charges prosecuted against adults in last fiscal year, over half of those were designated as “not proved”.[4]

One aspect of the problem is that the difficulty that the police face in having to do a balancing act when investigating sexual assault offences. The police’s primary role is the “investigation and conviction of offending and/or offenders.”[5] However, there is the secondary concern of providing support for victims, as mandated by the Adult Sexual Assault Investigation (ASAI) Policy published by the police force in 1998. It has been noted that victims often require support or special consideration during the police process of collecting evidence.[6] Because of the tension created by the two concerns, victims might find the interviews conducted by the police during this sensitive time interrogative or sceptical, which, in some instances, might have encouraged them to withdraw allegations or to behave in ways that was detrimental to their case.[7] Separate literature from the Ministry of Women’s Affairs lists types of victim responses to interviews that might cause police in those circumstances to doubt the truth of their complaints. Some of the responses collated from previous interview research were:[8]

  1. Victim self-doubt or denial may be perceived as evidence that no offence occurred,
  2. Withdrawn or aggressive responses to trauma may seem uncooperative, and
  3. A desire to conceal aspects of the incident may lead to inconsistencies in the evidence.

While the onus is on the police to investigate and convict, the nature of sexual assault offences is that officers need to be more considerate of the needs of victims compared to other types of crime in order for that to be successful. Even though the police have the final say on whether or not to prosecute, the cooperation of victims is generally required for there to be any real chance of the prosecution succeeding.

Balancing the provision of support for sexual assault victims whilst pursuing prosecution through investigation can be a difficult task for officers lacking special training regarding sex crimes, and perhaps that is one of the contributing factors regarding the public perception of police insensitivity. As noted by Associate Professor Julia Tolmie of the University of Auckland, “there have been attempts to improve the police response in recent times, but there is still a long way to go”. Historically, the police have arguably been deficient in sensitivity towards sexual assault victims, and Professor Tolmie mentions that this is a “particularly difficult area” because sexual inequality has not been done away with in New Zealand.[9] Measures have been proposed before regarding the court process — the idea of a specialist court for sexual assault was put forward by the Law Commission in 2013, but there has yet to be any significant change to the police’s system to make it less onerous to victims or to encourage public faith in its ability to provide adequate access to justice.[10]

Both the IPCA report and the Minister of Justice, Amy Adams, have called for improvements to the police’s method of dealing with sexual assault allegations. There have been mentions of New Zealand moving towards an inquisitorial system as opposed to its current adversarial one, although Ms Adams has acknowledged that to be drastic in terms of implementation.[11] However, the State of Victoria in Australia has been able to implement significant reform in an adversarial system in the last decade that might be worth our consideration. Amendments were introduced not too long ago that reduced the ability of the defence counsel during the court process to “construct the presence of a complainant’s consent” by taking away the ability to rely on factors such as the jury’s misinformation around the issue of rape (namely the myth that women provoke rape by dressing in a certain manner).[12] The inclusion of such amendments would benefit New Zealand, though the system of police prosecution here differs from Victoria. The Law Foundation have recommended reforms in the similar vein for the force.

The most recent of these recommendations to the police also refers to another jurisdiction. Associate Professors Elisabeth McDonald and Yvette Tinsley of the Victoria University of Wellington proposed the implementation of specific guidelines for the prosecution of sexual offences by police officers, with reference to the policies in England and Wales — namely that the police should be aware of rape myths and therefore exclude those myths from influencing the decision to prosecute or not.[13] These changes would arguably benefit both the force as well as victims in terms of allowing greater transparency regarding the responsibility of the police in its role to prosecute. It would also ensure that there are less cases possibly dismissed because of a lack of sensitivity from the police has led them to misinterpret the behaviour of sexual assault victims. Specialised training for police prosecutors and officers could be one way to improve the decisions made by the police force.[14] Although the above proposals are being considered by the Law Commission, it is likely to take time before they are considered by the Parliament for a legislative reform.

All in all, the concerns raised by the IPCA report are ones that have been considered by governmental bodies for quite some time, although meaningful reform in the areas of police process regarding sexual assault has been small. The release of the report has led to public engagement with the issue, prompting responses from the Minister of Justice as well as renewed interest in police prosecution and decision-making on the matter. Hopefully, with the current discourse around sexual assault offending and related criminality, changes can be made to better help the police to balance supporting complainants with their primary investigatory objectives, as well as to foster sensitivity in terms of assisting victims in accessing justice. The police force could benefit from more empathetic engagement with victims, and if it takes a set of governmental guidelines to enforce those standards, then it would be a step in the right direction.

For more on this topic, click here for EJP’s Symposium Paper on prospects for reform of the law on sexual crimes in New Zealand

[1] Bryce Edwards “Bryce Edwards: Can we trust the police?” The New Zealand Herald (online ed, New Zealand, 20 May 2015).

[2] Teuila Fuatai “Roast Busters report reveals errors” The New Zealand Herald (online ed, New Zealand, 20 May 2015).

[3] Statistics New Zealand “Annual Recorded Offences for the latest Fiscal Years (ANZSOC)” <http://nzdotstat.stats.govt.nz>.

[4] Statistics New Zealand “Charges prosecuted against adults by offence type fiscal year” <http://nzdotstat.stats.govt.nz >.

[5] Elaine Mossman and others Responding to sexual violence: A review of literature on good practice (Ministry of Women’s Affairs, Wellington, 2009) at 66.

[6] At 67.

[7] At 67.

[8] Sue Triggs and others Responding to sexual violence: Attrition in the New Zealand criminal justice system (Ministry of Women’s Affairs, Wellington, 2009) at 47.

[9] Interview with Julia Tolmie, Associate Professor of Law (the author, Auckland, 1 April 2015).

[10] Laura Walters “Support needed for sex assault cases” (30 October 2014) Stuff.co.nz .

[11] Walters, above n 11.

[12] Bianca Fileborn Sexual assault laws in Australia (Australian Institute of Family Studies, Melbourne, 2011) at 9.

[13] Yvette Tinsley “Investigation and the decision to prosecute in sexual violence cases” in Elisabeth MacDonald and Yvette Tinsley (eds) From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, 2011) 120 at 149.

[14] At 150.

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