Cross-Examination: A Less ‘Brutalising’ Way? A New Court for Sexual Violence Cases

By Anuja Mitra

Sexual violence is arguably the gravest violation of a person’s dignity and bodily integrity, but there has been considerable criticism of the way the courts deal with sexual violence cases. In response to this, as well as the 2015 Law Commission’s report The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes,[1] Chief District Court Judge Jan-Marie Doogue announced last year that new sexual violence court processes will be trialed in New Zealand. This specialist court will have the aim of improving the court experience for complainants and ensuring greater fairness overall.

Sexual Violence Victims and the Courts

The effects of sexual violence can hardly be overstated. Some long-term consequences may include “depression, decreased functioning, sleep disturbances, mood swings, denial, sexual dysfunction, difficulty forming relationships, phobias, preoccupation with the event and fear of solitude or withdrawal/social isolation.”[2] Yet this type of violence is chronically underreported, and Rape Crisis spokeswoman Andrea Black holds that this is due to a fear of being re-victimised in the courtroom.[3] Chief Judge Jan-Marie Doogue agreed that the current court process is “brutalising”[4] for complainants in a number of ways.

Taking a case to court is a lengthy endeavour. For sexual violence cases heard in 2014 and 2015, the average “age” of a case at the completion of the trial was 443 days.[5] As well as being the victims of the crime, complainants of sexual violence are also generally the sole witnesses. Consequently, there is pressure placed on them to repeatedly recount details of the incident. Having to remember the event so vividly over such a long period of time has a negative impact on their psychological recovery, causing them to ‘relive’ the attack and feel that they are being victimised all over again.[6]

This harm is compounded by the trauma of the trial itself, particularly during the giving of evidence and cross-examination by the defence. An Australian study found that women complainants were asked about their “contribution” to the crime and interrogated about their “sexually provocative” behaviour, as well as their clothing, drinking habits and emotional stability.[7] These complainants often felt that they, not the defendant, were on trial. This trauma is added to in certain cases where judges question the credibility of the complainant based on whether they match the judge’s “objective” view of the world, making assessments about how ‘the reasonable person’ should have behaved during or after the crime.[8] The jury may also use this approach, relying on their “‘social world’ knowledge” – knowledge that frequently “does not align with established research into sexual violence and sometimes runs directly counter to it”[9] – to reach a decision. Such “common sense” views do not consider the unique dynamics of sexual violence and the impact it has on its victims, potentially leading to courts drawing inaccurate conclusions while harassing complainants in the process.

Solutions from the Law Commission

In 2014, Justice Minister Amy Adams instructed the Law Commission to review the justice system’s response to sexual violence with a focus on the experience of complainants.[10] The Commission’s report was released in December 2015, and gave a total of 82 recommendations. Some notable recommendations included:

  • Enforcing a statutory time limit on hearing sexual violence cases – To reduce long wait times, the Commission proposed creating legislation that requires courts to hear sexual violence cases within a specified period of time.[11] This would decrease complainants’ uncertainty and speed up the process for young and vulnerable witnesses especially.
  • Entitling complainants to give their evidence and be cross-examined in alternative ways – To lessen trauma during trial, the Commission suggested allowing complainants of sexual violence to give their evidence in an “alternative way” under s 105 of the Evidence Act 2006, such as by pre-recorded video or CCTV.[12] The Commission further suggested that complainants should be allowed to have their cross-examination performed and recorded beforehand, in the presence of just the judge, the lawyers, the defendant, and the necessary court staff. This video would then be replayed at trial.[13] Alternative methods of giving evidence would let complainants describe details of the crime earlier when these are fresher in their memory, and answer questions about distressing matters in front of a few people instead of an entire courtroom.
  • Developing a specialist sexual violence court – To resolve sexual violence claims in an environment specifically informed about this type of offending, the Commission supported implementing a specialist sexual offence court.[14] The court would comprise of trained legal professionals who could perform “robust fact-finding without re-traumatising the complainant”, and “facilitate a coordinated and integrated approach among the various organisations and people who deal with complainants in sexual violence cases.”[15] An educated courtroom would lead to more consistent outcomes in cases and encourage victims to come forward without fear of re-victimisation.

The Sexual Violence Court Pilot

10 months after the Commission’s report, the District Court introduced the new specialist sexual violence court process that would be piloted over 2-2½ years. The court would be trialed in Auckland and Whangarei and hear its first cases in mid-2017.[16] This specialist ‘court’ is not actually a separate court, but a list of cases given specific priority within the District Court.[17] The court will hear all serious sexual violence offences, with designated judges who have undergone training in the “complexities of sexual violence matters” and are aware of the most current research.[18] Its emphasis is on streamlining the process; reducing delays and uncertainty where possible.

More information about how the court will operate can be found in the “Best Practice Guidelines” developed for the pilot.[19] The Guidelines encourage judges to exercise tight pre-trial management, but also to conduct the trial in a way that is sensitive to complainants and mitigates any difficulties they may face where possible. For example, judges should “enquire into and make appropriate directions as to” alternative ways of giving evidence under the Evidence Act.[20] They should further consider whether any participant requires interpreters,[21] communication assistance (for someone who struggles with English or has a communication disability)[22] or support persons.[23] Judges must also “be alert to and intervene if questioning of any witness, particularly the complainant, is unacceptable in terms of s 85 Evidence Act 2006.”[24] Section 85 holds that judges may disallow, or direct witnesses that they are not required to answer, “improper, unfair, misleading” or “needlessly repetitive” questions,[25] taking into account any impairments the witness might have (including psychological and psychiatric).[26]

All of these considerations ensure that sexual violence cases do not compromise the fair trial rights of defendants, while lessening the likelihood of re-victimisation for complainants.

Are Further Reforms Needed?

 The Chief District Court Judge has stressed that the new court “emphatically” does not depart from established democratic and legal principles.[27] However, there continues to be discussion concerning whether more fundamental change is needed in managing sexual violence cases.

One of these changes is the possibility of phasing out juries. The Law Commission favoured the idea of delegating the decision-making function in sexual violence cases to “some entity other than the jury”,[28] such as a panel of “lay assessors” who had some education in sexual offending.[29] Juries are an incredibly significant element of our court system, displaying democracy in action by representing the voice of ordinary citizens. Any infringement upon an accused’s right to trial by jury[30] would have to be a reasonable limit under s 5 of the New Zealand Bill of Rights Act, and will likely be highly controversial.

There has also been conversation around whether the courts should move from our adversarial system to an inquisitorial system. The adversarial model is one under which parties bring their matter to court, identify contested issues, give evidence and then resort to “a ‘battle’ to get to the truth between defence and prosecution, conducted in front of a jury.”[31] By contrast, under an inquisitorial model, the judge occupies a more active role and may conduct further investigation or question witnesses themselves.[32] Some lawyers have criticised the “gaminess and manipulativeness” of New Zealand’s adversarial system, especially in relation to sexual violence cases involving traumatised complainants.[33] However, the government has in the past shot down suggestions to move to a more inquisitorial system as impractical.[34]

Conclusion

In its report, the Law Commission resisted reforming the justice response to sexual violence through “incremental change”.[35] The new sexual violence court is a change far from incremental, taking real steps to ensure consistency in the law and better the court experience for complainants. Should the pilot be successful, it will greatly improve the way sexual violence claims are dealt with by the criminal justice system, making sure that justice is available to all.

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[1] Law Commission The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes (NZLC R136, 2015).

[2] At 43.

[3] Sally Murphy “New court to hear sexual violence cases” (25 October 2016) Radio New Zealand <www.radionz.co.nz>.

[4] Murphy, above n 3.

[5] Law Commission, above n 1, at 43.

[6] At 7.

[7] Pia van de Zandt “Heroines of fortitude” in Patricia Easteal (ed) Balancing the Scales: Rape, Reform and Australian Culture (The Federation Press, Sydney, 1998) 124 at 132-134.

[8] At 138.

[9] Law Commission, above n 1, at 111.

[10] At 34-35.

[11] At 66.

[12] At 71.

[13] At 72-76.

[14] At 91-106.

[15] At 101.

[16] The Chief District Court Judge For New Zealand “District Courts to Pilot Sexual Violence Court” (press release, 20 October 2016).

[17] The District Court of New Zealand “Sexual Violence Court Pilot – Frequently Asked Questions” <www.districtcourts.govt.nz>.

[18] “Sexual violence courts to be trialled” (20 October 2016) New Zealand Law Society <www.lawsociety.org.nz>.

[19] The District Court of New Zealand “Sexual Violence Court Pilot: Guidelines for Best Practice” <www.districtcourts.govt.nz>.

[20] At guideline 12.4.

[21] At guideline 12.7.

[22] At guideline 12.8; Evidence Act 2006, s 4.

[23] At guideline 12.9.

[24] At guideline 23 (emphasis added).

[25] Evidence Act 2006, s 85(1).

[26] Section 85(2)(b).

[27] Jan-Marie Doogue “Putting a sexual violence court to the test” (20 October 2016) New Zealand Law Society <www.lawsociety.org.nz>.

[28] Law Commission, above n 1, at 116.

[29] At 115-116.

[30] New Zealand Bill of Rights Act, s 24(e).

[31] Law Commission, above n 1, at 109.

[32] At 48.

[33] Law Commission “Alternative Pre-Trial and Trial Processes: Summary of Submissions to Consultation” (December 2012) <www.lawcom.govt.nz>.

[34] Rod Vaughan “Sexual violence reform – change at last” Auckland District Law Society (5 Feb 2016) <adls.org.nz>.

[35] Law Commission, above n 1, at iv.