BY LIANNE VOON

Criminal law is made up of moral questions and our attempts to answer them. These answers are always, inescapably, a reflection of our collective history and social culture. What we understand to be right and wrong, where we think these lines should be drawn, the degrees of culpability and scale of morality by which we judge—these ideas are legitimised and preserved within the law as much as they are informed by it. This dynamic can result in an echo-chamber where harmful schemas are perpetuated and naturalized. Sexual violence is perhaps one of the clearest examples of this. Legislation creates a particular construction of sexual violence and the judiciary operates within this enshrined narrative. Historically, these processes and the underlying narrative of sexual violence have been problematic and damaging.

 

What does this mean?

From the start, our understanding of sexual violence has not traditionally been accurate or helpful.  Our collective understanding of sexual violence features a disproportionate emphasis on strangers and dark, isolated areas, as well as problematic assumptions around victim behaviour. Alongside that, alcohol consumption, pre-existing relationships and clothing choice are all framed as material information when sexual violence occurs. Ultimately and at every stage, we place the burden of responsibility on the victim. This results in a culture of victim blaming and normalised sexual violence and has a powerful bearing on how people understand and classify sexual violence, even when they experience it.[1] Even before serious long-term consequences occur, overwhelming feelings of self-doubt and self-loathing are not uncommon, even with the tools and knowledge to make sense of what has happened. These feelings can be exacerbated in choosing when and if to contact authorities – especially where cases involve drugs and alcohol, previous consensual sex or intimate partner violence – as survivors often feel they must first convince the person contacted before they will receive support.[2] Women choosing whether to report and pursue complaints face very real possibilities of losing everything from family and friends, a stable income and job security, to a place in the community and even their own home. Yet where the navigation of such circumstances has led to delayed reporting, withdrawal of complaints or situations where the complainant does not wish the accused to be convicted, their credibility and character are often seen to be eroded despite such behaviour being rational and reasonable in context.[3]

Furthermore, there are substantial issues at each step of the process that act as barriers to justice and perpetrators of harm. While there is little doubt that the overwhelming majority of sexual violations go unreported, some estimates put that figure as high as 80%.[4] Those who experience sexual violence choose not to report for a variety of reasons, including a profound wariness of the criminal justice system as “alienating, traumatising, and unresponsive” and a well-grounded expectation that their moral character and credibility will be on trial, as much as the accused.[5] When reviewed in 1997, close to 40% of sexual violence cases were mislabelled by police, gatekeepers of the criminal justice system, as K3. This coded for ‘no offence’ and effectively translated as a false accusation. The introduction of formal policy and extensive long-term training resulted in a drop to 9% by 2015, but the “legacy of blame and disbelief” remains.[6]  This operated hand in hand with the conception of a ‘credible’ witness, both in the procedural context of the court and the larger framework of the responsible, reasonable ‘victim’. This was a profound factor in the engagement of all complainants but most dramatically impacted those especially vulnerable to sexual violence: women with mental health issues and mental impairments.[7]

Beyond that, court processes are known to be lengthy and brutal undertakings which inevitably involve extraordinary sacrifices of body and mind, as well as resources like time and money. The process of providing and qualifying evidence is an invasive and traumatic process which compromises recovery and can come with wider social costs. Additionally, the intimate nature of sexual violation means that the complainant is often the sole witness, compounding the already heavy burden.[8] These structures stem from a problematic social narrative of sexual violence, which sets out what is plausible and what matters about the people, places, relationships and responses involved. Assumptions made about the event of sexual violence, surrounding circumstances and what a ‘typical’ victim response looks like disregards and disparages cases that don’t meet this criteria, resulting in both significant obstacles to justice and incredible damage to survivors.[9] As these responses become reinforced through precedent and filter through the legal system, it enforces the problematic and damaging narrative that underlies it.

 

How have we attempted to rectify these issues?

In the last decade, a variety of measures have been explored and implemented to better serve survivors of sexual violence. Detailed recommendations have also been made with reference to the courts and legal system. These include statutory requirements, such as a prescribed period of time in which sexual violence cases must be heard from when the charge is filed and counsel discussions around modes of evidence in order to make less traumatic methods available.[10] Other significant legal reforms include the pilot of specialist courts for sexual violence, alternative juristic processes, special consideration when considering whether a case should be heard in front of a jury, and specialised training and education for judges, fact finders and juries in understanding trauma to the extent that it is required to achieve justice and fairness.[11] Enhanced support has also been proposed in and out of the court, including training for those who interact with complainants, as well as improved access to information on the court process and what help is available.[12]

Beyond the courts, organisations such as the Sexual Abuse Prevention Network provide programmes which aim to prevent sexual violence as well as implement effective response initiatives for men, women and children.[13] The New Zealand Law Society, in recognition of sexual violence being prevalent in the law circuit, have launched directed networks and channels for support and safe reporting.[14] The need for education in breaking harmful myths and constructing a more diverse and inclusive narrative of sexual violence has also been recognized, and is being targeted across a range of media and cross-disciplinary research that delves into overlapping issues, such as intimate partner violence.[15] The mechanisms by which women are objectified and silenced, and the role this plays in sexual violence, has also prompted extensive research around a variety of issues and proposed countermeasures and educational strategies. Some key focus points include the impact of media in framing and reporting with special regard to the voice that is elevated and endorsed, understandings around informed and freely given consent across real and legal contexts, and the role of the beauty industry and mainstream pornography in socializing young people.[16] Increasingly, attention is being drawn to the pervasive and entrenched nature of sexual violence through global movements such as #MeToo and Time’s Up[17], and students especially are taking up activist roles in leading protest marches and demonstrations and curating online spaces and promoting discourse.[18]

 

So, sexual violence: taken apart?

Despite explosive, global momentum and significant increases in social awareness and conversation, the law has struggled to find success that makes use of such steps forward.[19] In the same vein, the prevalence of sexual violence remains high despite legislative reform and judges who are “willing to play their part”.[20] Even with real, informed changes to the law, “outdated common law practices” which rely on “the location of the event; a focus on resistance and the number of injuries; recent complaint; [and] the underlying assumption of the untrustworthiness of the complainant” remain predicated on a construction of sexual violence that is fundamentally informed by the old, problematic narrative—and will ultimately render any reform meaningless.[21]

In the wake of all this, how then do we define substantive change? How do we achieve this in the real world and in our legislation and our courts? It seems clear that both the moral narrative and formal mechanisms of the criminal justice system have to be taken and dealt with together. For all our legal discourse and reform, substantive change will never be achieved if it continues to operate within and ultimately serve and perpetuate the old, problematic model. This is, perhaps, the greatest barrier to overcoming sexual violence.

 

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Featured image source: Pixabay

[1] Jan Jordan “Still Silent Objects? Exploring 21st Century Barriers to Rape Reform” (symposium presented to Victoria University, Wellington, April 2019)

[2] Jan Jordan, above n 1.

[3] Jan Jordan, above n 1.

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

[5] Law Commision, above n 4.

[6] Laura Walters “Police approach to rape has improved, results haven’t” (17 April 2019) Newsroom <https://www.newsroom.co.nz/2019/04/17/540832/police-approach-to-rape-has-improved-results-havent>.

[7] Laura Walters, above n 6.

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

[9] Law Commision, above n 4.

[10] Law Commision, above n 4.

[11] Law Commision, above n 4.

[12] Paolo Turuc “Government seeks to improve court processes for sexual violence victims” (4 September 2017) NZ Lawyer Magazine <https://www.nzlawyermagazine.co.nz/news/government-seeks-to-improve-court-processes-for-sexual-violence-victims-240778.aspx>.

[13] Angharad O’FLynn “Other alternatives for reporting sexual assault” (29 March 2018) <http://www.lawsociety.org.nz/practice-resources/the-business-of-law/workplace-environment/other-alternatives-for-reporting-sexual-assault>.

[14] Sol Dolor “Law society opens harassment reporting and support channels” (4 April 2018) NZ Lawyer Magazine https://www.nzlawyermagazine.co.nz/news/law-society-opens-harassment-reporting-and-support-channels-248362.aspx>.

[15] New Zealand Law Society “Courts can be circuit breaker for violence” (7 April 2016) <http://www.lawsociety.org.nz/lawtalk/lawtalk-archives/issue-885/courts-can-be-circuit-breaker-for-violence>.

[16] Jan Jordan, above n 1. Individual research heads Anj Barton, Sophie Beaumont, and Samantha Keene.

[17] Mary Zost “Confronting sexual harassment: 4 movements changing the world” (30 January 2019) AdLibbing <https://www.adlibbing.org/2018/01/30/confronting-sexual-harassment-4-movements-changing-world/>.

[18] New Zealand Law Society “Law students and supporters march to demand future workplaces free of sexual violence” (15 March 2018) <http://www.lawsociety.org.nz/news-and-communications/latest-news/news/law-students-and-supporters-march-to-demand-future-workplaces-free-of-sexual-violence>.

[19] Equality Now “The global rape epidemic campaign” (accessed 14 May 2019) <https://www.equalitynow.org/the_global_rape_epidemic_campaign?locale=en>.

[20] New Zealand Law Society, above n 15.

[21] Julia Quilter “Reframing the Rape Trial: Insights from Critical Theory about the Limitations of Legislative Reform” (2011) 35 A Fem LJ 23 at 23-49.