Cross-Examination: Let down by the system: What else can be done to protect sexual assault survivors in the criminal justice system?

By Eve Gamet

The criminal justice system has historically been a difficult space for victims of sexual violence. In a process that focuses much on cross-examination, remembering meticulous details, and recounting distressing events in a public space, the court system is arguably flawed. Sexual violence incidents are massively unreported, and only 13% of recorded incidents actually result in conviction.[1] With such statistics, and an accompanying report by the Law Commission, the tide is turning in our approach to the handling of sexual violence within the justice system. The need to tackle the issue head on has been culminating for some time, and with the proliferation of the online movements, the international call to justice has never been as loud.

Our System

The New Zealand court system, and that of similar jurisdictions, has been criticised for their handling of sexual violence cases, due to their apparent maintenance of a “patriarchal court” system based on “archaic views”.[2] Judith Herman, in her psychological study, noted that “if one set out intentionally to design a system for provoking symptoms of traumatic stress, it would look very much like a court of law”.[3] Cross-examination results in a harsh rehashing of events, which can permanently impact psychological recovery. This, along with the lengthy criminal procedure and the presence of a jury, makes the system an “alienating, traumatising and unresponsive” experience.[4] The court experience has often been described as a ‘second assault’, in dire need of reform.[5]

The Pilot Court

Amid the call for change, the Law Commission released a 2015 report regarding the current judicial handling of sexual violence cases, and addressed ways in which this can be changed.[6] The Report acknowledges potentially damaging factors of the current system, such as cross-examination, a jury and the court-room layout.[7] The Report aims to encourage new approaches in the handling of sexual violence claims, and to remove the “fear and distrust” felt by claimants within the very system designed to protect them.[8] The Report established a pilot specialised sexual violence court; this has now entered into its second trial year.[9] The pilot court includes specialised judges and counsel to reduce court time, provides support to victims and their families, and aims to reduce the risk of re-traumatisation. This pilot is a platform for further analysis, from which to determine whether a permanent legislated sexual violence court is viable.

The pilot is part of the District Court system, consisting of a list of sexual violence cases, given specific priority within the District Courts of Auckland and Whangarei, rather than a separate specialised court.[10] The Report also did not recommend the removal of juries due to the importance of, and potential conflict with, the New Zealand Bill of Rights Act 1990. However, the Report left this question open for future discussion, as more analysis is required.[11]

A year-long study of these pilot courts has begun. Backed by the Law Foundation, lead by Professor Elisabeth McDonald (University of Canterbury), and assisted by Paulette Benton-Greig (University of Waikato), the study will look into whether the pilot courts “are making it less traumatising for complainants to give evidence”.[12] Their study will compare specialised trials to general trials, to see whether further change is required. Professor McDonald stated that the implications of this study will contribute to the necessary conversation about the treatment of sexual violence victims.[13]

Specialist sexual violence courts have previously been established in other jurisdictions to target high offending rates, low conviction rates, and complainant experiences. In 2004, South Africa established 47 specialised sexual violence courts. These took a complainant-focused approach to the case to provide a better, more sensitive treatment of victims. However, despite positive evaluation, the South African courts declined to implement specialist services, due to concerns about the distribution of resources.[14] In New South Wales, a similar pilot court was created in 2003. However, assessments found the court’s success was not as hoped, as specialist training was not consistently taken up.[15] In England and Wales, Crown court judges are required to undertake a three-day training schedule before they can hear sexual violence cases. Initially, the courts of England and Wales wanted to establish a separate court, however this was not possible due to staffing concerns. The specialised training course aims to work past this.[16]

 

What else can be done?

The Law Commission Report acknowledged areas in need of further analysis. The issues faced by other similar specialised courts have shown that staffing, support, and training are imperative to their success and survival. Further analysis is necessary to show whether these international concerns may eventually become an issue here, and whether the survival of a specialised court would be possible in New Zealand. So while a pilot court is a necessary step towards better treatment of sexual violence cases, there is the potential for further changes to be effected and effective.

A move to an inquisitorial procedure?

The current pilot courts remain within the adversarial system used by New Zealand courts. The Report noted that “any move to a non-adversarial or inquisitorial system would require fundamental law change”.[17] However, there is international discussion about whether a firmly inquisitorial model would be more suitable for sexual violence cases.

The adversarial model focuses on a process whereby the judge is “an adjudicator, determining the case on the basis of evidence introduced by the parties to the litigation”.[18] This system can result in serious “intractable problems for vulnerable complainants”, due to the model’s suggested encouragement of aggressive behaviour in protecting a defendant’s rights.[19]

In inquisitorial proceedings the judge plays a more active role; this model is used in many European jurisdictions. During a trial the judge “assumes a direct role, conducting the examination of witnesses… neither the prosecution nor the defence has the right to cross-examine, but they can present effective summations”.[20]

The issue at the heart of the adversarial approach is cross-examination. Defence lawyers often use this process to undermine the survivor’s reliability and credibility as a witness by questioning the consistency and plausibility of their claim. This often amounts to a “public character assassination”, using the psychological consequences of sexual violence to undermine their claims.[21] The process of recounting a harrowing ordeal and having this intensely and publicly scrutinised is also a barrier to psychological recovery. It is argued that within an inquisitorial system, greater management of inappropriate examination questions can occur.[22]

However, key to the Bill of Rights Act are the principles of the presumption of innocence, the right to a fair trial and the right to give a defence.[23] Changes in the approach of the court would necessarily need to ensure a defendant’s rights, while protecting the victim. Jeremy Finn suggested that there would be little difficulty in accommodating the right of the presumption of innocence in an inquisitorial approach if we look to the “European experience”.[24] Finn also noted that the Bill of Rights is not an absolute statute; it is capable of modification to reflect societal interests. He advocates for “the need to remedy the unnecessary and unfair distress caused” by the current system, and any move to an inquisitorial system would do so without breaching the Bill of Rights.[25]

Training

The pilot court focuses on specialist training for judges and counsel. Sexual assault cases are rarely straightforward, and there are numerous misunderstandings about the dynamics of such violence [26]. Specialist training helps to reduce jury reliance on misconceptions and contribute to a change in courtroom culture by restoring respect for survivors.[27] In New Zealand, lawyers were already “treating complainants more respectfully in the pilot court while also robustly defending their clients”.[28]

As shown by the pilot specialised court of New South Wales, uniform and consistent training would be required for this to have effect. Judicial specialisation and specific training were questioned by the Criminal Bar Association, which did not support the initial proposal. They believed this would encourage the risk of “burnout” due to increased stress from the workload.[29] A necessary balance would need to be struck.

Removal of the jury?

The presence of juries in sexual violence cases has been an internationally controversial issue. It is argued that re-telling the incident to twelve strangers may cause further harm to the victim, and removing juries would reduce pressure within the court room. The “fear of disbelief, or unjustified blame” are other common feelings of the court procedure, heightened by being watched and judged by twelve lay people who are largely untrained in the issue at hand.[30]

Juries are often at risk of the “exploitation of myths about the prevalence of false accusations”.[31] Stories told by the defence emphatically, which undermine survivor’s claims by playing on stress and faulting memory (psychological effects of sexual violence), can be used to question their legitimacy. For twelve lay people, unfamiliar with the effects of sexual violence, coupled with the assertion that many accusations are false, the potential for throwing a complainant’s claim is higher.

However, the jury serves a vital function in criminal trials, as they bring “diversity of knowledge, perspectives and personal experiences”.[32] The Report recognises that removing the jury system would risk the loss of “democratic involvement; the safeguard against arbitrary or oppressive government by acting as a check… and the promotion of public confidence in the system.”[33] Therefore, the competing needs of a trial must be met. This could be done through the inclusion of an alternative fact-finding group, such as “assessors” or “professional jurors”.[34] This group would be a panel of specialist fact-finders, with an understanding and knowledge of sexual violence. However, any alternative would need to take into account the importance of diversity in representation, which is not always possible when drawing from a specifically trained group of people.

The Law Report responded to the growing need to address cases of sexual violence in a sensitive and timely manner. Sexual violence offences are deeply personal and extensive in their effects, and to address this, the justice system needs to respond with a different model. The year-long study into the function and procedure of the pilot courts will present telling information about how to move forward. The international call for further changes has been both loud and echoing, in the wake of high profile sexual violence cases dominating headlines. While respecting the imperatives of justice, the key rights firmly embedded into our law remain salient: the right to a fair trial and to give a defence. The question of a new legislated court with differing procedures necessarily calls those rights into question. To find the balance, the courts and legislature have a long road ahead. At the heart of the discussion is the need to ensure victims are treated with respect and fairness, in a criminal justice system that has so often let them down.

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[1] Rape Prevention Education “Sexual Violence in Aotearoa New Zealand” <http://rpe.co.nz >.

[2] Cathy Camera “Sex without consent is rape. Courts around the world must catch up” The Guardian (online ed, United Kingdom, 9 May 2018).

[3] Judith Lewis Herman “Justice from the victim’s perspective” (2005) 11 Violence Against Women 571 at 574.

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

[5] At 7.

[6] Law Commission, above n 4.

[7] At 6.

[8] At 6.

[9] At 99.

[10] The District court of New Zealand “Sexual Violence Court Pilot – Frequently Asked Questions” < https://disctrictcourts.govt.nz>.

[11] Law Commission, above n 4 at 117.

[12] Lynda Hagen “Study to assess sexual violence court pilot” (2 March 2018) New Zealand Law Society <www.lawsociety.org.nz>.

[13] Hagen, above n 12.

[14] Law Commission, above n 4 at 94.

[15] At 94.

[16] At 95.

[17] Above n 4.

[18]  Jeremy Finn “Inquisitorial Trials for Sexual Offences and ‘Fair Trial’ Rights” (2009) 15 Canta LR 317 at 318.

[19] Louise Elaine Ellison “A comparative study of rape trials in adversarial and inquisitorial criminal justice systems” (PhD paper, University of Leeds, 1997) at 132.

[20] Encyclopaedia Britannica “Inquisitorial procedure” <www.britannica.com>.

[21] Finn, above n 18, at 7.

[22] Finn, above n 18.

[23] Section 25.

[24] Finn, above n 18 at 326.

[25] Finn, above n 18 at 347.

[26] Rape Prevention Education, above n 1.

[27] Law Commission, above n 4, at 92.

[28] Hagen, above n 12.

[29] Law Commission, above n 4, at 98.

[30] Simon McCarthy-Jones “Survivors of sexual violence are let down by the criminal justice system – here’s what should happen next” (29 March 2018) The Conversation <https://theconversation.com>.

[31] “The Guardian view on tackling sexual violence: when victims suffer twice” The Guardian (online ed, United Kingdom, 29 April 2018).

[32] Law Commission, above n 4, at 109.

[33] At 115.

[34] At 116.