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Tinsley, Yvette; McDonald, Elisabeth --- "Is There any Other Way? Possible Alternatives to the Current Criminal Justice Process" [2011] CanterLawRw 13; (2011) 17 Canterbury Law Review 192

Last Updated: 20 May 2013


Yvette Tinsley and Elisabeth McDonald*

I. Introduction

The adversarial trial is no longer its own justification; it must adapt itself to the needs of witnesses and not vice versa. Fairness to witnesses can be accomplished without jeopardising fairness to the accused; it is not necessary to choose one over the other.1

The other workshop papers highlight problems and issues with the current adversarial process where there is an “all or nothing” outcome in relation to conviction. In this paper, we examine some possible alternative approaches, as initial thoughts along a path to achieving better processes and outcomes for all those involved where there is an allegation of sexual violence. Throughout the paper, we use the term “restorative justice” to describe those processes “aimed at bringing together victims, offenders and their communities in meaningful dialogue aimed at repairing the harm done”,2 although we recognise that the term “restorative justice” is contested in scope and meaning.

After setting out the processes available currently, we explore different approaches to a response to sexual violence. None of these approaches specifically address prevention and we conclude by acknowledging that combining legal change with other social policies and treatment programmes may offer a more holistic, and successful, approach. We argue that law reform can have limited effect if other social measures and education are not also undertaken.

II. “Restor ative Justice”

The concept of “restorative justice” is a flexible one, and the label is invoked to describe a range of practices which respond to crime but vary significantly.3

It has been used to describe New Zealand’s family group conferences, Marae justice, and victim-offender mediation, as well as the process of victims being involved in a police cautioning process or the decision about sentencing. The United Nations describes restorative justice as:4

* Dr Yvette Tinsley, Reader in Law at Victoria University of Wellington

Elisabeth McDonald, Associate Professor of Law at Victoria University of Wellington

1 Laura C H Hoyano “Variations on a Theme by Pigot: Special Measures Directions for Child

Witnesses” [2000] Crim LR 250 at 273.

  1. Chris Cunneen and Carolyn Hoyle Debating Restorative Justice (Hart Publishing Ltd, Oxford, 2010) at 15.
  2. See also Howard Zehr and Harry Mika “Fundamental Concepts of Restorative Justice” (1998) 1 Contemporary Justice Review 47.

4 United Nations Office on Drugs and Crime Handbook on Restorative Justice Programmes

(New York, 2006), at 100.


[A]ny process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator. Restorative processes may include mediation, conciliation, conferencing and sentencing circles.

Under a restorative justice model, the criminal act is seen as an act against both the community and the victim. Offending behaviour is seen as damaging human relationships, and restorative justice aims to restore victims, offenders and the community.5 It seeks to undertake this restoration

– a remedying of harm – through collective participation by all those affected by the offence.6 It aims for re-integration and repair rather than punishment and retribution, although in reality many manifestations of restorative justice combine elements of retribution and restoration.7 What is and what is not restorative justice is the subject of great debate.8

Ideally restorative processes should address a range of “damaged relationships: not only between victims and offenders, but between offenders and their communities, and with society as a whole.”9 This is not to say that there is not a coercive element to restorative justice – the availability of sanctions of one form or another may sometimes blur the lines between restoration and retribution (be this punitive, censuring or proportionate to the harm caused). Although it is argued that restorative justice sanctions are not “merely punitive”,10 it could be said that restorative sanctions are not an alternative to punishment, but are an alternative form of punishment.11

The type of restorative justice most utilised in New Zealand is a pre- sentence conference that involves the victim (and their supporters or family), the offender, who has admitted responsibility for the offence (and their supporters or family), as well as those responsible for facilitating the conference and assisting those involved (most particularly the victim) to achieve an agreed outcome.12

5 John Braithwaite “Restorative justice and a better future” in Gerry Johnstone (ed)

A Restorative Justice Reader: Texts, sources, context (Willan Publishing, Portland 2003) 83 at


6 Tony Marshall “The evolution of restorative justice in Britain” (1996) 4 European Journal on

Criminal Policy Research 21, at 37.

  1. For discussions of the role of retribution in restorative justice, see Jim Consedine Restorative Justice: Healing the Effects of Crime (Ploughshares Publications, Lyttelton, 1995); and K Daly “Restorative justice: The real story” (2002) 4 Punishment and Society 55.
  2. See generally Cuneen and Doyle, above n 2, at 1; Paul McCold “Towards A Holistic Vision of Restorative Justice: A Reply to the Maximalist Model” (2000) 3 Contemporary Justice Review 357; Lode Walgrave “How Pure Can a Maximalist Approach to Restorative Justice Remain? Or Can a Purist Model Of Restorative Justice Become Maximalist?” (2000) 3

Contemporary Justice Review 415.

9 Cunneen and Hoyle, above n 2, at 8.

10 Antony Duff “Probation, Punishment And Restorative Justice: Should Altruism Be Engaged in Punishment?” (2003) 42(2) Howard Journal of Criminal Justice 181 at 182.

11 Antony Duff “Alternatives to Punishment – or Alternative Punishments?” in Wesley Cragg

(ed) Retributivism and Its Critics (Franz Steiner, Stuttgart, 1992).

12 Ministry of Justice Restorative Justice in New Zealand: Best Practice (Wellington 2004) at 8 [Restorative Justice in New Zealand ].

III. Current Restor ative Justice Models

A. Pre-sentencing Conferences

Restorative justice programmes or schemes in New Zealand are incorporated into the criminal justice system through provisions in the Sentencing Act. These provisions allow the courts to adjourn sentencing in order for restorative justice to be attempted and to consider the outcome of any restorative justice conference in the final sentencing decision13 Information on understanding and participating in restorative justice is offered through the government’s website for victims of crime.14

Restorative justice in New Zealand is not administered directly through the government but through community organisations, which receive some funding from government in order to provide such services and to accept referrals from coordinators located at courts. While the practice of restorative justice provision may vary according to the organisation that provides it, a common approach for most restorative justice meetings can be identified. In

2004 the Ministry of Justice also produced a set of principles of best practice after consultation with a coalition of restorative justice providers.15 These are:

(1) Restorative justice processes are underpinned by voluntariness (in terms of participation and outcomes);16

(2) Full participation of the victim and offender should be encouraged (the relevant community should be represented but the victim should not be pressured to be personally present);17

(3) Effective participation requires that participants, particularly the victim and offender, are well informed;

(4) Restorative justice processes must hold the offender accountable (they must acknowledge responsibility for the offence before the case can be accepted for a restorative justice process);

(5) Flexibility and responsiveness are inherent characteristics of restorative justice processes (and must be responsive to the culture of participants);18

(6) Emotional and physical safety of participants is an over-riding concern;

13 Sentencing Act 2002, ss 10 and 25.

14 Ministry of Justice “Victims Information: For People Affected by Crime” (2011) <www.>.

15 Ministry of Justice Restorative Justice in New Zealand, above n 12.

16 Note however that only 86% (or 18 of the 24 providers surveyed in 2006) required victim consent before a case went to a conference or panel: see Crime and Justice Research Centre Evaluation of the Court-Referred Restorative Justice Pilot: Case Studies (Ministry of Justice, Wellington, 2005) at 30.

17 The Nelson Restorative Justice Services and the Horowhenua Restorative Justice Programme, however, require the victim to be present and in Nelson both offender and victim must have support at the meeting if it is to go ahead: see ibid, at ii.

18 Most Māori participants providing feedback for the two evaluations described in n 17 were positive about the process.

(7) Restorative justice providers (and facilitators) must ensure the delivery of an effective process; and

(8) Restorative justice processes should only be undertaken in appropriate cases. The use of restorative justice processes in cases of sexual violence must be very carefully considered.

A description of the usual process was outlined in the review of the pilot project:19

A pilot scheme of court-referred restorative justice conferences began operation in September 2001 in the District Courts in Auckland, Waitakere, Hamilton and Dunedin. Judges in the pilot courts are able to refer a range of cases for investigation of whether or not a restorative justice conference is possible. The referral by the judge takes place after a guilty plea, and the restorative justice coordinator in each of the courts then meets the offender to confirm that the offender is willing and appears able to participate in the restorative justice process. In some cases, the coordinator may also have contact with the victim. Cases where the offender is willing and appears able to participate safely in a conference and where the victim does not, at this stage, express an unwillingness to participate in a conference are referred to facilitators from provider groups contracted by the Ministry of Justice.

Either one or two facilitators then meet with the victim and offender separately and will convene a conference if the offender still appears able to participate safely, and both victim and offender are willing. The restorative justice conference is a relatively informal meeting run by the facilitators. Support people for the victim and the offender are also usually present. Although the police, a probation officer and the offender’s lawyer are usually invited to attend the conference, they may decide not to. The intention is that the conference provides an opportunity for victims to have a say and for offenders to take responsibility for putting things right. Conference agreements, if there are agreements, may include specific steps that the offender can take to put things right. These can involve, for example, payment of money to victims, attendance by offenders at courses, or offenders carrying out specific work.

A report of the interactions at the conference, and any agreements reached, is provided to the judge prior to sentencing. The judge must take the report of the restorative justice conference into account along with any other reports (for example, pre-sentence reports) in deciding on the appropriate sentence. Judges choose whether or not to incorporate into the sentence all or part of any agreement reached. However, instead of imposing a sentence at this stage, the judge may choose to adjourn the case further for the agreements reached at the restorative justice conference to be carried out by the offender. In these cases, a report is provided to the judge on completion of the agreements and the offender is subsequently discharged or sentenced.

Participation in and a successful outcome from a restorative justice conference may well lead to a noticeable mitigation of sentence.20 However, some restorative justice providers offer a process both pre- and post-sentence.21

In this sense the process of restorative justice is not in itself a true alternative to the criminal trial but an alternative to the sentencing stage of most trials. A truly alternative system of restorative justice would avoid the criminal justice process altogether. The accusation would be resolved within

19 Crime and Justice Research Centre, above n 16, at 17-18.

20 See R v Shirley [2009] NZCA 216; R v Hodgson HC Auckland CRI-2009-044-10450, 28

September 2010. See also Crime and Justice Research Centre, above n 16.

21 Venezia Kingi, Judy Paulin and Laurie Porima Review of the Delivery of Restorative Justice in Family Violence Cases by Providers funded by the Ministry of Justice (Crime and Justice Research Centre, Victoria University of Wellington, 2008) at ii.

the community in a fashion that meant the complainant would ultimately gets due satisfaction from the process and decide of their own free will not to report the crime to police and go through the process of a trial. There is literature which suggests that this kind of resolution of offending can occur in some informal Māori or marae justice schemes.22 Indeed some providers, for example, Restorative Justice Services in Christchurch and Project Restore in Auckland, also accept referrals from the community and provide the service in cases where there is no formal criminal charge.23

There is both international and New Zealand evidence to indicate that restorative justice outcomes are more satisfying for victims than the trial process,24 but it should be noted that the necessity of an admission of guilt in the most common use of restorative justice in New Zealand means that these victims would not go through the experience of a full adversarial trial. One perceived advantage, however, of restorative justice is the greater level of participation it allows the victim. It gives them a role with actual decision making power, and a right to be heard and to respond to the offender’s statements in a full and frank way which is not restricted by court processes or the adversarial conception of the State and the defendant as opposing parties.25

One of the criticisms of the current use of restorative justice (that is, mainly at the pre-sentence stage) is that the role of treatment is not given sufficient importance.26 It may also be the case that a conference is more effective and useful once a treatment programme has been completed by the offender. More flexibility in terms of the timing for the conference or restorative process is therefore viewed as important. There is no particular reason not to defer sentencing while treatment is completed. Further, concern has been expressed as to who decides whether a case is suitable for restorative justice – some argue that the decision should be “left to victims and offenders by making restorative justice available in any case where they both wish to follow that course”.27 There is also the on-going debate as to whether restorative justice processes should be available in cases of sexual offending. One overseas programme was set up to explore the possibility of restorative justice in this context.

22 See generally Valmaine Toki “Will Therapeutic Jurisprudence Provide a Path Forward for

Māori?” [2005] WkoLawRw 12; (2005) 13 Wai L Rev 169.

23 Kingi, Paulin and Porima, above n 21, at ii.

24 Crime and Justice Research Centre, above n 16, at 209 ff.

25 See generally Mary P Koss “Blame, Shame, and Community: Justice Responses to Violence Against Women” (2000) 55 American Psychologist 1332; Mary P Koss, Karen J Bachar and C Quince Hopkins “Restorative Justice for Sexual Violence: Repairing Victims, Building Community, and Holding Offenders Accountable” (2003) 989 Annals of the New York Academy of Sciences 384.

26 Kathleen Daly “Setting the Record Straight and a Call for Radical Change: A Reply to

Annie Cossins on ‘Restorative Justice and Child Sex Offences’” (2008) 48 Brit J Criminol

557 at 564 [“Setting the Record Straight”].

27 Submission by AUT Restorative Justice Centre to the Focus on Victims of Crime Consultation

Document (18 March 2010) at [54].

B. RESTORE (Arizona)

RESTORE (Responsibility and Equity for Sexual Transgressions Offering a Restorative Experience) was a collaboration of services in Pima County, Arizona, which developed an alternative option for resolution of sexual offending.28 The programme used the terms survivor (or survivor/ victim) (SV) and responsible person (RP). These terms were chosen to break automatic assumptions and connotations of the traditional adversarial criminal justice process, as well as to retain the empowerment conveyed by the word “survivor”, while recognising the negative connotations of the term “victim”.

The RESTORE model was based on conferencing models of restorative justice, although with many changes made to reflect the unique features of sexual offending.

Eligible cases were those involving first-time offenders of acquaintance rape that was committed with minimal force (ie where the violence did not exceed that required to compel the unwanted sexual activity), as well as cases involving misdemeanour sexual offences, such as indecent exposure, peeping, public masturbation etc. The programme was designed for participants over the age of 18 years old (both victim and offender), and excluded RP’s who had previous arrests for felonies, interpersonal violence or domestic violence.29

To be eligible for the programme, the RP had to acknowledge that the

sexual act occurred.

There were four stages:

1. Referral and intake

Referral was made by prosecutors and participation was voluntary. Once a prosecutor determined that a case may be suitable for RESTORE, the SV was approached first. This was to guard against the possibility that the SV would feel coerced to undergo restorative justice rather than progressing through traditional criminal or civil justice systems. If required, the SV could have additional time to make a decision and was offered a free consultation with a civil attorney if they wished to discuss their other legal options.

If an SV did not wish to proceed to a face-to-face conference, they could choose to participate to a lesser degree. Involvement could range from simply giving permission for RESTORE to work with the offender, to full participation with the exception of appearing in the same room as the RP. SVs who did not participate in the conference were represented by someone they chose, or a community member closely matched to their age, ethnicity and gender.

28 Members of the collaboration were three local police and sheriff ’s offices, the county attorney’s offices of Tucson and Pima County, two victim services centres and the University of Arizona Mel & Enid College of Public Health. The development phase was funded by the Tucson Police Department, while the United States Centers for Disease Control and Prevention provided grants to allow the implementation and evaluation of the programme.

29 Mary P Koss “Restorative Justice for Acquaintance Rape and Misdemeanor Sex Crimes” in James Ptacek (ed) Restorative Justice and Violence Against Women (Oxford University Press, Oxford, 2010) 218 at 218.

Once signed consent had been obtained from the SV, the RP and/or their legal representative was approached. Information about RESTORE was sent to the RP’s counsel for review before an initial meeting between RESTORE personnel and the RP. This meeting could be attended by counsel. There are a number of reasons why defence counsel may have advised an RP to participate in RESTORE, which offered the opportunity to:

(a) get help for an offender;

(b) remove the risk of incarceration or imprisonment;

(c) avoid sex offender registration (which may be mandatory in the case of some offences, and at the judge’s discretion in others);

(d) avoid a criminal record of conviction if the programme was completed and there was no reoffending;

(e) remove the necessity of civil actions by the victims to claim reparation; (f ) provide confidentiality and no written record of the conference – so

nothing that was disclosed could be used in other legal actions if

RESTORE failed.

During the initial meeting the RP was given a programme manual and the programme would be discussed. If the RP chose to engage in RESTORE, a signed consent form was obtained, and they would undergo a psychosexual evaluation to ensure suitability. If the evaluator had concerns about participation, they were referred to the programme, and if the concerns could not be addressed, the case would be referred back to the Attorney’s Office.

2. Preparation

Preparation is the key to success of the conferencing model, and in the RESTORE programme it typically took longer than in other conferencing models, which recognised the complex nature of sexual victimisation and the commitment to avoiding revictimisation and re-abuse.

The case manager would meet with the SV and undertake an intake assessment, including a safety assessment, identify who would attend the conference as supporters and help the SV to prepare a written impact statement for the conference. The case manager would also discuss the Redress Agreement and help the survivor to formulate appropriate reparation expectations. Appropriate reparation suggestions included payment for direct expenses such as lost time at work or medical or counselling costs for the SV, evaluation and intervention of the RP, stay away agreements, community service or service to a surrogate victim. It could also be appropriate for the SV to ask for a formal apology or for the RP to answer her questions (such as “why did you do this?”) as this could decrease the SV’s future vulnerability to revictimisation. Work was also undertaken to avoid excessive shaming.

The format of the conference was always discussed with the SV and the SV decided whether she or the RP would give their version of the incident first. A contingency plan was made for someone trusted to step in for the SV if she found herself unable to speak once in the conference.

A similar process occurred with the RP, although meetings were organised to ensure that the SV and RP did not have any contact before the conference. The case manager reviewed safety concerns and rules, the likely format of the conference, things that the RP might be asked during the conference and what might be included in the Redress Agreement. The RP was helped to write a statement of responsibility. As the case manager had access to police reports, they ensured that the RP did not gloss over the offending.30 It was sometimes necessary to undertake preliminary work with the RP to allow them to acknowledge their acts and eliminate portions of the statement that shifted blame to the SV. RPs were discouraged from including an apology at this stage31 and were not required to use the word rape or rapist.

Preparation for the RP’s friends and family was also important. The RP had to have at least one support person with them at the conference. A key aspect of preparation for the RP’s support people was to allow them to hear the statement of responsibility in advance, to avoid them being shocked in the conference.

Ultimately, the goal of preparation was to ensure that the SV had the emotional control and confidence to attend the conference; and that the RP was ready to stay focused and accept Redress Agreements without resistance. It was also important to ensure that all participants were aware of the ground rules and the consequences if those were broken.

3. The Conference

Conferences were held in a secure location (a police station), professionally facilitated, and conducted pursuant to a comprehensive protocol designed to maximise the safety of participants. Unlike standard conferencing models, participants sat around a conference table, rather than in a circle. This gave the perception of a protective barrier that was wide enough to prevent bodily contact.

The facilitator or convener’s role was to ensure that every participant had an opportunity to speak and be heard, to ensure that the rules were observed and all aspects of the process covered. The conference facilitator did not have any prior contact with the SV or the RP, although they were assisted in their role by the case manager. The rules were designed to prevent re-abuse of the SV. Any breach of the rules was grounds for the conference to be terminated. If this occurred, the case would be referred back to the prosecution.

30 Ibid, at 231.

31 RESTORE believed that the conference is too soon after the incident for an apology to be meaningful to either the RP or SV (although it may occur at the end of the monitoring stage); see ibid.

While it is possible to have more than one SV present at a conference, RESTORE limited the number of SVs who spoke at a conference. From experience, after around three SV statements, RPs became overwhelmed with input they could not process, which could lead to abusive behaviour and violation of conference rules.32

After all participants had spoken about the incident and its effect on them, the Redress Agreement was discussed. A preliminary plan would be developed by the SV in consultation with programme personnel prior to the conference, but the terms were discussed and agreed upon by those in attendance at the conference.

Lawyers were not present at conferences (at least not in an official capacity) and no written, visual or audio record was made. All participants signed confidentiality agreements. Where there was prior notification, and the SV, RP and their supporters agreed, observers could be present for the conference. This recognised that justice is a public process and allowed a balance between SV control of the process and the public need for justice accountability.33 Prosecutors, police officers, correctional officers, defence

lawyers and additional friends and family are examples of those who

requested attendance.

4. Monitoring and reintegration

Monitoring of the RP took place for 12 months after the conclusion of the conference. The case manager had weekly telephone contact and a monthly face-to-face meeting with the RP. Formal supervision was designed to ensure that the SV was not re-traumatised by promises made that were not fulfilled, and RESTORE acted as an intermediary in all financial transactions that were agreed to in the Redress Agreement. Additionally, RESTORE established a Community Accountability and Reintegration Board (CARB) consisting of volunteer community members, as a further layer of monitoring and accountability. The CARB had a number of functions, including representing the broader community in validating the SV and condemning sexual violence more generally. It disseminated information about agreements that had been reached and was the final decision-maker in cases where the RP’s involvement with RESTORE was terminated for non-compliance and the case referred back to the criminal justice process. CARB also provided support and resources to help RPs complete their Redress Agreement.

RPs met with CARB after the conference, at six months, and at completion of the programme (or more frequently if there was non-compliance). The meeting at the conclusion of the 12 month monitoring period marked the formal recognition of the RP’s reintegration into society.

The SV’s active participation in the programme finished once the conference had been convened and the Redress Agreement was signed. However, the programme continued to keep a limited form of contact with the SV. The SV was immediately notified if the RP failed to successfully complete the programme, or if they reoffended.

32 Ibid.

33 Ibid, at 223.

RESTORE closed because it was unsustainable once the funding period ended.34

C. Project Restore – NZ

This Auckland-based programme is the only mainstream specialist service providing restorative justice processes in cases of sexual offending in New Zealand.35 Project Restore NZ was set up in 2005 and was inspired by Mary Koss’s work with restorative justice in sexual assault cases (RESTORE Arizona).36 Referrals may be court referred or from the community, with a

50/50 split to date.37 It should be noted that a very small number of cases have been referred so far.

For court referred processes, the timeframe involved can be challenging. Courts may expect a resolution within 4-6 weeks so that sentencing can take place. This does not always suit the victim: in fact it can undermine recovery. Restorative processes may take a long time, up to a year or more. More reasonable timeframes may result if sentencing was orientated more towards treatment than punishment, offering a more natural fit with restorative justice. The service is not advertised, but currently has a waiting list of possible cases.

The model used differs from a typical restorative justice conference as it involves more people and is more widely supported. But, as with traditional restorative justice, the key is good facilitation and preparation of both victim and offender to allow them to hear and be heard. The process uses a community conferencing model, but is tri-faceted. Each case has a community survivor specialist, a community offender specialist and a restorative justice facilitator. These parties each have different functions, but operate together as a team.

The process is very flexible and is tailored to the individual circumstances of each case. At each step there is an assessment about what is required next, with the three experts working together to ensure that the process is appropriate and targeted to the individuals involved. There is recognition that the process is potentially more harmful to participants (particularly victims) than if it had not been undertaken. As such, survivor/offender specialist input is seen as critical. There is an ethical duty at each stage of the process to ensure safety and that the process is appropriately paced.

A study of Project Restore by researchers at AUT University was published in 2010 outlining its functioning, adherence to best practice in restorative justice, and outcomes.38 The report provides a good understanding of the

34 Personal communication from Mary Koss 29 June 2010.

35 Launched August 2005, see “Restorative justice may assist sex offence victims” NZ Lawyer (LexisNexis, Auckland, 2005); Shirley Jülich “Restorative Justice and Gendered Violence in New Zealand: A Glimmer of Hope” in James Ptacek (ed) Restorative Justice and Violence Against Women (Oxford University Press, Oxford, 2010) at 239 [“Restorative Justice and Gendered Violence in New Zealand”].

36 See Shirley Jülich “Views of Justice Among Survivors of Historical Child Sexual Abuse: Implications for Restorative Justice in New Zealand” (2006) 10 Theoretical Criminology


37 This information was gained at a meeting with members of Project Restore in February


38 Shirley Jülich and others Project Restore: An Exploratory Study of Restorative Justice and Sexual

Violence (AUT University, 2010).

model adopted and its strengths while also noting the challenges that the project faces, from low funding to limited recognition.39 In terms of outcomes, the small sample size of cases dealt with by the project made it difficult to draw conclusions on the success or appropriateness of restorative justice in dealing with sexual offending,40 although some victims did express a positive response.41

Problems with the process, especially when community initiated processes include enforcement, have been outlined by Shirley Jülich:42

It should be noted that unless some form of court- ordered supervision is in the sentence that includes the restorative conference outcomes, no legislation enacted in New Zealand can force the offender to complete these outcomes. To date, this has been left to moral obligation and informal monitoring by family members and conference facilitators. For serious crime such as gendered violence, a formal process of enforcing conference outcomes is necessary. It is important to note that if RJ provider groups accept referrals from outside of the court system, there is no legal obligation for alleged offenders to complete any agreed-upon conference outcomes.

D. Family Group/ Youth Court Conferences

Although it has been described as the “first legislated example of a move towards a restorative justice approach to offending”,43 there is no explicit mention of restorative justice in the Children, Young Persons and Their Families Act 1989 (CYPF Act). 44 The CYPF Act is restorative in practice, but does not have a restorative theoretical base. As Stewart has commented “the concept of restorative, as opposed to adversarial, justice was probably not a foremost concern of the original legislators but this has emerged from practice as a key factor in dealing with juvenile offenders”.45

The term “youth justice family group conference” (FGC) refers to a statutory decision making forum in which the child or young person, their family,46 state officials and possibly the victim of the offence meet under the auspices of Child, Youth and Family to decide on a plan to deal with offending

39 Ibid, at 17.

40 Ibid, at 64–65.

41 Ibid, at 57.

42 Jülich “Restorative Justice and Gendered Violence in New Zealand”, above n 35, at 247.

43 Gabrielle Maxwell and others Achieving Effective Outcomes in Youth Justice: Final Report

(Ministry of Social Development, 2004) at 8.

44 The authors acknowledge Dr Nessa Lynch for her consent to the use of these passages on Family Group Conferences from her doctoral thesis: Nessa Lynch ”The rights if the young person in the New Zealand youth justice family group conference” (PhD thesis, University of Otago, 2009). See that thesis and Nessa Lynch “Restorative justice through a children’s rights lens” (2010) 18 International Journal of Children’s Rights 161; Nessa Lynch “Respecting legal rights in the New Zealand youth justice family group conference” (2007)

19 Current Issues in Criminal Justice 75 for more detailed discussion of Family Group


45 Trish Stewart, “Family Group Conferences with Young Offenders in New Zealand” in Joe Hudson and others Family Group Conferences: Perspectives on Policy and Practice (Federation Press/Criminal Justice Press, Sydney, 1996) at 68.

46 Children, Young Persons and Their Families Act 1989, s 251 uses the terms ‘family, whānau or family group’.

by that child or young person. Intention to charge and court referred FGCs are the most relevant here, given that these involve the exercising of powers akin to the criminal process.

The majority of offending by young people is dealt with by the police through warnings or the Police Youth Aid Diversion scheme. For more serious offending, if the police wish to lay a charge against a young person who has not been arrested, a youth justice co-ordinator must be consulted and an “intention to charge” FGC held.47 Providing the young person admits the offence,48 this type of FGC is tasked with deciding on a plan to keep the charges out of the Youth Court. If the agreed actions in the plan are completed within the specified timeframe, the police will agree not to charge the young person and it will be the end of the matter.

When a young person appears before the Youth Court, he or she is asked to plead “denied” or “not denied” to the charge(s). It allows the young person to state the charge is not contested, leaving the FGC to ascertain whether the charge is actually admitted. If the charge is “not denied”, the Youth Court Judge is required to adjourn the case to allow a FGC to be held.49 Provided the young person admits the offence, the FGC has the task of agreeing on what action and/or sanctions should result and recommending to the court accordingly.50 If the young person denies the charge a hearing date will be set. Matters proceed to a defended hearing in accordance with the Summary Proceedings Act 1957.51 Hearings are closed to the public.52 If the offence is proved at the defended hearing, the Youth Court Judge must adjourn the case and refer the matter to a FGC.53 This FGC has the task of deciding “how the young person should be dealt with for that offence, and to recommend to the Court accordingly”.54 The Youth Court Judge is not bound to accept the plan or recommendation decided by the FGC but must have regard to such plans or recommendations when making decisions.55 If the requirements of the FGC plan are completed within the agreed timeframe, there will usually be a discharge pursuant to s 282 or 283(a) of the CYPF Act. The Judge may make further orders under s 283 particularly where the FGC plan has not been successfully completed. 56

Under the CYPF Act, the Youth Court Judge has a residual discretion to order a FGC at any stage of proceedings where it appears necessary or desirable to do so.57 The Youth Court Bench Book gives as an example a

47 Ibid, s 245.

48 Ibid, s 259.

49 Ibid, s 258(d) and s 259(1).

50 Ibid, s 258(d).

51 Ibid, s 321, subject to Schedule 1.

52 Ibid, s 329.

53 Ibid, s 247(e).

54 Ibid, s 258(d).

55 Ibid, s 279.

56 Orders that the Youth Court may make are listed in s 283 and include discharge, admonishment, come up if called, fines, reparation, restitution, forfeiture, disqualification from driving, supervision orders, community work orders, supervision with activity, supervision with residence and conviction and transfer to the District Court for sentence.

57 Children, Young Persons and Their Families Act 1989, s 281B.

situation where the Youth Court has to make a decision whether Youth Court jurisdiction is to be offered to a young person accused of a purely indictable offence.58

McElrea categorizes three particular elements of the CYPF Act as being restorative in nature; the transfer of state power from the courts to the family and community, group consensus decision-making in the FGC and the involvement of victims leading to a healing process.59 In practice, levels of

‘restorativeness’ vary between FGCs. Approximately half of FGCs do not have a victim or victim’s representative present.60 When the victim is not present, one of the key components of a restorative justice event (i.e. the repair of harm caused by the offending) is diminished.61

E. Victim-Offender Mediation

In some civil law jurisdictions victim-offender mediation (VOM) is available as a form of diversion – that is, the police or prosecutor will decide not to proceed with the charge if there has been resolution (through reparation for example) as a result of an agreement reached between the victim and offender.62 This is usually only a possibility for lesser offences and not usually for any form of sexual offending.

In Austria, for example, the prosecutor may decide not to lay charges where the offence falls within the jurisdiction of the district court or of a single judge of the regional court (generally being offences punishable by not more than five years imprisonment); the offence did not result in the death of a person; the public prosecutor or the court is satisfied that the evidence clearly establishes guilt; and the offender agrees to a prosecution offer of pre- trial diversion (payment of a fine, community work, supervision or victim- offender mediation).63

Once the prosecutor has decided that the case is suitable for VOM, the actual conflict resolution is carried out by the probation service. First, a specially trained social worker contacts the offender and asks them if they are willing to accept responsibility and how they intend to compensate the victim for the emotional and financial damage they have caused. If the offender is willing to provide compensation the mediator will contact the victim to describe their idea of compensation and to set up a meeting of the offender and victim, usually in the local probation office. The mediator then informs the prosecutor of the outcome. The decision as to whether VOM

58 Institute of Judicial Studies Youth Court Bench Book (3rd ed,Institute of Judicial Studies, Wellington, 2008).

59 F W M McElrea “A New Model of Justice” in F W M McElrea and B J Brown (eds) The

Youth Court in New Zealand: Four Papers (Legal Research Foundation, Auckland, 1993).

60 Maxwell and others, above n 43

61 Consedine, above n 7.

62 Similar models of VOM are employed in various Australian jurisdictions, for example

Western Australia.

63 Section 198 of the Procedural Code (Austria). See Marianne Loschnig-Gspandl and Michael

Kilchling “Victim/Offender Mediation and Victim Compensation in Austria and Germany

- Stocktaking and Perspectives for Future Research” (1997) 5 Eur J Crime Cr L Cr J 58 at


was successful is made by the prosecutor – in which case the prosecutor must dismiss the case and there will be no registration in the criminal records.64

VOM may also be ordered by the court at any time up until the trial begins.

VOM in Germany (referred to as “TOA” – Tater-Opfer-Ausgleich) may also be used in all kinds of cases as an addition rather than alternative to prosecution (see s 155a of the German Code of Criminal Procedure). It may be employed at any stage of the process. Under s 46 of the substantive Criminal Code, the fact that mediation has occurred and has resulted in a mediated agreement may be a ground for discontinuing the proceedings. However, the discontinuance of proceedings would never occur in serious cases such as those involving sexual violation because of the public interest in the outcome. Where the prosecution continues notwithstanding a mediated agreement, the judge will take into account the agreement in determining the sentence, but will only accept it if he or she agrees with it. Again, as with Austria, TOA is primarily a form of diversion “in suitable cases” – not a true alternative to the criminal justice process.65

There is currently no public or political interest in extending VOM to

cases of sexual offending in either Germany or Austria as this would be seen as being too “soft” on this kind of crime. However, the VOM process currently available in Norway, viewed as most useful in cases of youth offending, may well be extended to cases of domestic and sexual violence.66

F. Mediation Outside of the Criminal Justice Process

Mediation has been introduced at the Centre for Victims of Sexual Assault in Copenhagen as one way of “helping women exposed to sexual coercion regain control over their lives.”67 The staff at the Centre describe this type of mediation as68

a process through which the woman and the offender as given the opportunity to have a dialogue, facilitated by one or two impartial third persons. A concrete mediation is sometimes conducted as a dialogue between two parties, but more often the dialogue takes place through correspondence.

The staff at the Centre believe that the opportunity for such a dialogue is most important for those women whose cases do not get to trial or the offender is acquitted, or who would prefer not to report the incident but want to confront the offender about what he did and get answers to help them understand the offending. This was the case for Lisa:69

With [the staff ’s] assistance [Lisa] wrote this in a letter to the offender. She told him her story of what happened and the suffering it caused her during and after. She put questions and asked for answers. She asked for a face-to-face meeting.

64 Ibid, at 62.

65 Thomas Trenczek “Victim-Offender Mediation in Germany: ADR Under the Shadow of the

Criminal Law?” (2001) 13 Bond LR 364.

66 Kaia Strandjord and others “Current and future directions in the Norwegian criminal justice system” ( Justice Horizons Seminars, Ministry of Justice, Wellington, 11 November


67 Karin Sten Madsen “Mediation as a way of empowering women exposed to sexual coercion” (2004) 12 NOR A - Nordic Journal of Feminist and Gender Research 58.

Lisa did not get a reply to her letter and invitation. Some women do, but like Lisa most women who contact the offender by letter or mail get nothing in return. This is something [the women are prepared for] and thus sending off a letter to the offender is something that must be well thought order not to cause further harm and suffering. [It is still] a step that can be very helpful...[To] quote Lisa: “Had I not written the letter I think I would be even more scared than I am now to meet him, because I would not have taken any action to confront him. Now I feel I have come out on top. I am in the treetop and he is a root in the ground. I can walk up to him and say ‘Hi, I know you’ve read my mail and I didn’t get an answer. Why is that?’ I feel I have the strength to do that now.”

IV. Meeting the Needs of Māori Offenders, Victims/Survivors and their Whānau

The public perception of restorative justice is that it is an integration of traditional Māori processes into the mainstream system. There is very limited research on whether alternatives such as restorative justice are in fact compatible with indigenous notions of justice. The claim of restorative processes as integration of Māori processes may ignore diversity amongst Māori (and other communities who have a heritage of community justice). For example, Tauri argues that restorative justice has been imposed on Māori, is neo-colonialist, is not community driven, and is an adjunct rather than alternative to conventional criminal justice.70 Jackson has stated that:71

The redefinition and incorporation of basic Māori legal and philosophical concepts into the law is part of the continuing story of colonization. Its implementation by government, its acceptance by judicial institutions, and its presentation as an enlightened recognition of Māori rights are merely further blows in that dreadful attack to which colonization subjects the indigenous soul.

Little research on sexual violence has been undertaken utilising a kaupapa Māori approach. Such research needs to be undertaken as soon as possible. The experiences of Māori victim/survivors reported on in the work undertaken for the Ministry of Women’s Affairs highlighted many of the same issues as for the non-Māori sample, although it should be noted that the sample size was small. It was found that less than half of the Māori research participants had reported what happened to the police. Kingi and others concluded that:72

This is not surprising given that the New Zealand criminal justice system is based on a British model of criminal justice whose design and processes may be viewed as monocultural and individualistic. The lack of a bicultural justice system and robust collaboration with iwi, hapuˉ and whanāu in the administration of this acts as a barrier to Māori feeling safe and culturally supported to access these services. Further, historical grievances and negative experiences Māori have had with the Crown, and by extension, the criminal justice system, can act as a barrier to Māori confidence in accessing criminal justice services.

70 Juan Tauri “Family Group Conferencing: A Case Study of the Indigenisation of New

Zealand’s Justice System” (1998) 10 CICJ 168.

71 Moana Jackson “Justice and political power: Reasserting Māori legal processes” in Kayleen M. Hazlehurst (ed) Legal pluralism and the colonial legacy: Indigenous experiences of justice in Canada, Australia and New Zealand (Avebury, Aldershot, 1995) at 254.

72 Venezia Kingi and others Responding to Sexual Violence: Pathways to recovery (Ministry of

Women’s Affairs, 2009) at 158.

Any successful use of restorative processes within the criminal process therefore needs to allow a safe environment, with ownership being given to Māori. The inter-weaving of this into the formal process therefore presents considerable challenges. However, Ngā Kaitiaki Mauri, in the Report of the Taskforce for Sexual Violence, advocated further consideration of Māori systems of social control and dispute resolution as crucial to support whānau ora, stating that exploring alternative models, including restorative justice, “comes from a realisation that in the wisdom of the past are the ideals which can be adapted to yield justice today”.73

A. Marae Justice Models

One model for whānau-centered restorative processes is followed by the Mana Social Services Trust in Rotorua.74 Their work in the area of domestic violence has been favourably reviewed,75 and it seems they are willing to work with victims/survivors of sexual violence as well. As with Project Restore NZ, court-referred work is part of the pre-sentencing process.

For Māori, the importance of the marae as a forum is because it represents “the body of ancestors and...a world in balance...a place where mana [can] be restored and wairua healed.”76 Valmaine Toki has described the similarities between tikangi Māori dispute resolution and what may now be claimed to be a model of (Western) therapeutic jurisprudence:77

The re-offending of an individual on a regular basis indicated an imbalance of their tinana (body), wairua (spirit) and mauri (life force). This resulted in the inability to establish a state of ora or balance and in turn created an imbalance within the community. The process of dispute resolution aimed to identify the causes of the dispute or reasons for the offending in order to uncover and address the source of the problem. This moves the focus away from the individual to an analysis of cause and effect.

The principle of kotahitanga (inclusiveness) in participation and accountability underpin any process of Māori dispute resolution. All parties to a dispute must be represented and given an opportunity to be heard. In contrast to the present criminal justice system, it is not essential that the individual be present as it is the collective that is the defendant and it is the collective that is the plaintiff. But the individual would suffer a loss of mana if they did not attend.

If the wrongdoing is not admitted by the group or the offender, it is passed to the living relations by whānaungatanga because of the obligations between each other, an intergenerational relationship. The offender is encouraged to accept responsibility and in doing so re-establish the mana among the group. The group then decides what actions are required by the offender to establish utu with the victim and their community. [For

Māori a form of utu, or reciprocity to restore the balance, is always necessary.]78 The dispute process was one of pono (justice) and tika (law/right). In the dispelling of tapu between people, food is shared to show acceptance.

73 Taskforce for Action on Sexual Violence Te Toiora Mata Tauherenga - Report of the Taskforce for Action on Sexual Violence, Incorporating Views of Te Ohaakii a Hine - National Network Ending Sexual Violence Together (Ministry of Justice, Wellington, 2009) at 138.

74 Mana Social Services Trust Website <>.

75 Mark Tisdall and others Review of the use of restorative justice in family violence cases in the

Rotorua district (Ministry of Justice, Wellington, 2007)

76 Valmaine Toki “Are Domestic Violence Courts working for indigenous peoples?” (2009) 35

CLB 259 at 276.

B. Te Kooti Rangatahi (Youth Court)

The Rangatahi courts are a judiciary-led initiative which began in Gisborne in 2008 as a response to the disproportionate numbers of Māori in the youth justice system (19% of those aged 14-16 years but 66% of those in youth custody). There are six sitting Rangatahi Courts: Gisborne, Waitakere, Manurewa, Orakei, Waitara and Hamilton. They are presided over by Māori District Court Judges.79

Rangatahi Courts are not a separate justice system as the youth (aged

14-16 and of any ethnicity) must first appear in Youth Court at the relevant District Courthouse. If the youth does not deny the offending they must then undergo a FGC which will result in a plan (for example, community service, treatment programmes etc). The youth then appears in Youth Court and if the judge approves the plan they will decide if the youth and their whānau will be accepted into Rangatahi Court. If so, the youth and their whānau will have regular meetings (usually fortnightly) at the Court (based on the marae) with the same judge each time. If the judge is satisfied that the FCG plan has been completed, the youth will be discharged (the charge deemed never to have been laid). If the plan is not completed the youth will return to the Youth Court.

Judge Heemi Taumaumu, who presided at the court’s first sitting in Gisborne, says the court is “no silver bullet” and he is not interested in “painting a picture that isn’t true”:80

We’re dealing with a problem that started in 1840 and hasn’t changed significantly in the last 20 years. It’s not a problem that is going to be solved overnight either. We do need to be courageous.

I am not going to tell you we are confident this is the answer and we are going to solve everything. I just want to be realistic. But what I have seen without question is a change in the lives of certain young people I thought were destined for jail and add to those statistics.

C. Te Ohaakii a Hine

The Report of the Taskforce for Action on Sexual Violence81 incorporated the views of Te Ohaakii a Hine – National Network Ending Sexual Violence Together (TOAH- NNEST), a group made up of community workers and others who informed the work of the Taskforce. TOAH-NNEST is representative of both Māori and Tauiwi and took care to work in partnership, consistent with Treaty of Waitangi principles.82 As part of this process, a commitment to Te Ohaakii a Hine was seen as important. Below is an extract from the Report:83

79 Marty Sharpe “A quiet revolution in teen justice” The Dominion Post (Wellington, August

14, 2010) at B1.

80 Ibid.

81 Taskforce for Action on Sexual Violence, above n 73.

82 Ibid, Appendix B.

83 Ibid, at 100.

As a collective concept and one based in holistic ideas of health, Te Ohaakii a Hine challenges individualistic solutions and is a pathway to whänau ora as it involves facilitating whānau, hapū and iwi connectedness and healing.

Te Ohaakii a Hine recognises that tangata whenua have equal rights to access and enjoyment of the wider determinants of health (education; spirituality; cultural identity; housing; justice; welfare; employment; and lifestyle) as elements of whānau wellbeing. New Zealand statistics suggest that Māori are over represented as victims of sexual violence.

A tangata whenua “ecological” model involves acknowledging that an individual is an active contributor to an interdependent social structure, comprising of whānau, hapū and iwi. The model is helpful in understanding the extenuating issues associated with the development of culturally appropriate prevention plans and strategies.

Each layer of the interdependent social structure comprising whānau, hapū and iwi has a role and influences the experience of wellbeing as a whole. Imposing upon the natural development of tangata whenua social structures are imposed belief systems. These inadvertently influence the quality of wellbeing that a whānau and their members may experience.

Expression of whānau ora is dependent on the capacity of whānau, hapū and iwi access to culturally appropriate knowledge.

Although this refers to a state of being, it is also viewed as a process by which mana can be restored to both victim and offender. The way that this can happen, outside the coloniser’s criminal justice system, is still evolving. The quote emphasises, however, the importance for Māori to develop their own way to ensure re-alignment.

V. Ways of Addressing Sexual Offending

It has been shown that there are a number of models of “restorative justice” that could be used in the disposition of cases of sexual offending. Currently in New Zealand, as in most jurisdictions, there is significant caution about extending any of these forms to sexual cases. Further, the most used version of restorative justice in New Zealand is at the pre- sentencing stage. Very few alternatives are available for those victims (or offenders) who would prefer to reach resolution outside of the criminal justice process. In cases where a not guilty verdict is reached, the victim lacks any way of getting acknowledgement of the harm done. This is particularly difficult for complainants in cases of acquaintance rape, where it may well be established that there was lack of consent but the defendant is found not guilty, as it cannot be proved that he had no reasonable grounds for believing the complainant was consenting.

Many victims would prefer not to have to go through the court process and/or would like for the offender to be accountable in some way, but not necessarily to be convicted of an offence or imprisoned.84 It is also the case that some, if not many, accused persons would be willing to acknowledge the harm they have caused in a different forum. The current high penalties for sexual offending, coupled with the low conviction rate, especially in acquaintance rape cases, means there is currently little incentive for pleading guilty in such cases.

84 See generally Sara Payne Rape: The Victim Experience Review (Home Office, 2009); Baroness Vivian Stern The Stern Review: Independent Review Into How Rape Complaints Are Handled by Public Authorities in England and Wales (Government Equalities Office and Home Office,

In order to address the concerns of victims, the rights of the accused and the public interest in accountability for offending, we propose two options to stimulate discussion. Both can be varied in a number of ways and further, separate, options may emerge. The first option is a model that would sit outside the criminal justice process, although the same approach could also be used at a pre-sentence stage, as is the practice now. The second is a model of resolution within the criminal justice process, which could be used in appropriate cases as an alternative trial process to what is currently available.

Finally, there is much that could be attempted in a proactive sense, in focusing on prevention of sexual violence.

A. Community Restorative Justice and Sexual Offending: Advantages and Disadvantages

It has been argued that retributive justice places the victim at the mercy of a judicial system that may or may not be able to prove guilt beyond a reasonable doubt. If the prosecution fails, victims may feel further victimized and humiliated. Even when the victim “wins”, the experience of gruelling litigation may diminish healing potential.85

The potential advantages of utilizing a restorative justice model then, stem from victim empowerment and input as a means of addressing the harm caused to the individual and his or her community (family, friends and the broader community). The current criminal process focuses on the community response to offending in terms of offending violating State interests in the community good. This can sideline the legitimate interests and needs of victims, relegating them to the same status as any other concerned citizen.

In restorative justice models, the victim has a voice and participates fully. The type of participation may or may not be dispositive,86 but certainly offers the opportunity for input and participation. Such approaches may also enhance victim validation and offender responsibility. Rather than being tried on behalf of the State by the rather remote mechanism of the court, the offender has to face the person whose rights he or she violated, and must also account to the community in a direct manner. In censuring the behaviour of the offender, the victim is validated.

The environment in many restorative settings is more communicative and flexible than a courtroom. The direct engagement with the harm caused, either through communicating with the victim or the victim’s whānau may have greater potential for resolution and restoration. Through a less formal environment, restorative processes may allow for a more individualized approach to the needs of the victim whilst offering a less threatening environment for all concerned.

85 Arielle Dylan, Cheryl Regehr and Ramona Alaggia “And Justice for All?: Aboriginal Victims of Sexual Violence” (2008) 14 Violence Against Women 678 at 679.

86 See Ian Edwards “An Ambiguous Participant: The Crime Victim and Criminal Justice

Decision-Making” (2004) 44 Brit J Criminol 967.

As victims can choose to have a direct role in restoration, it is argued that restorative processes are less victimising than court processes87. The potential for the process to be less victimizing, in combination with the requirement for offenders to directly face the consequences of their acts, is argued to result in a more effective method of repairing harm.88

There are, however, potential disadvantages, and any system utilizing restorative processes needs to be aware of and be able to proactively attend to these. Studies suggest that it is not the case that restorative processes are without revictimisation effects. For example, in an early study of youth justice conferences, Maxwell and Morris found that 25 per cent of victims felt worse after attending a conference.89 Much restorative justice literature places emphasis on the advantages of restorative justice in facilitating reconciliation.90 Victims may want reconciliation, but in cases of interpersonal violence, many may not. Care needs to be taken to ensure that pressure is not brought to bear on victims to offer forgiveness.

There is the potential risk to victim safety, both physically and psychologically, in participating in a restorative process, discussed further below. The very nature of informality may prevent adequate protections and safeguards for victim safety, and perpetuate power imbalances between the victim and offender. There is also the danger that restorative mechanisms could be used to “play” the system, allowing manipulation of the process by offenders in minimizing their guilt or placing blame on the victim, particularly where there is a link back through to the formal process and potential reduction in sentence.

The key to engagement with restorative processes must be that there is choice and free consent to pursue that method of resolution. There is a risk that victims will feel pressure to attend a conference or other restorative mechanism, when they would prefer to have the State intervene on their behalf.91 For example, this may arise from a negative perception of the formal

criminal process; pressure from family or the local community; or a desire

to avoid the public nature of the court. Within the restorative process, there may be pressure (albeit subtle) to accept an apology or outcome.

Equally, the fine line between retributivism and restoration when sanctions are imposed creates issues that are difficult to explain away simply by reference to the motivation behind the sanction. A sanction may have an equally coercive effect on the offender whether it comes from a place of

87 Kathleen Daly “Restorative Justice and Sexual Assault: An Archival Study of Court and

Conference Cases” (2006) 46 Brit J Criminol 334.

88 Heather Strang and Lawrence W Sherman “Repairing the harm: Victims and restorative justice” [2003] Utah L Rev 15.

89 Gabrielle Maxwell and Allison Morris Family, Victims and Culture: Youth Justice In New

Zealand (Institute of Criminology, Victoria University of Wellington, 2003).

90 See, for example, Howard Zehr The Little Book of Restorative Justice (Good Books, Intercourse

(Penn), 2003).

91 Andrew Ashworth “Responsibilities, Rights and Restorative Justice” (2002) 42 Brit J Criminol 578.

restoration or retribution. Daly argues that “elites may delude themselves into thinking that what they intend to do (that is, not to punish) is in fact experienced by those at the receiving end”.92

B. Particular Challenge in Relation to “Gendered Harms”

Because many types of restorative process require the victim and offender to meet and reach an agreement, feminists have expressed concern that this is problematic for women who have been the victims of domestic violence or sexual offending – often discussed together and referred to as “gendered harms”. The primary reason for this concern stems from the view that these are crimes that stem from the power imbalance between men (usually the offenders) and women (usually the victims).93 Critics are concerned, as they are with the use of mediation for sexual harassment,94 or domestic violence claims,95 that women will not receive a just result when the power dynamic that has lead to the harm is replicated in the restorative justice or conference process.96 There are also concerns that harm may result from the less public forum typical of restorative processes, feeling that the private nature of the processes may diminish public perceptions of the seriousness of the offending involved.97

These criticisms are responded to in the work of (among others) Allison Morris,98 Kathleen Daly,99 and Mary Koss.100 There is still relatively little empirical work in the area, reflecting the limited use of restorative justice in sexual violence cases. They argue that some form of restorative justice may be possible in response to sexual offending, in a way that does not revictimise the complainant. Advocates of restorative justice consider that it may be an effective option in cases of “acquaintance” or familial sexual offending, including rape, but it is just as important, some would say more so, to attend to concerns about the possibility of coercion and disempowerment in situations in which the victim and offender know each other and may need to have an on-going relationship. It is also important to bear in mind that the

92 Kathleen Daly “Revisiting the Relationship between Retributive and Restorative Justice” in Heather Strang and John Braithwaite (eds) Restorative Justice: Philosophy to Practice (Ashgate, Aldershot, 2000) at 39.

93 See also Elaine Mossman and others Responding to Sexual Violence: A review of literature on good practice (Ministry of Women’s Affairs, 2009) at 89 ff.

94 Claire Baylis “The Appropriateness of Conciliation/Mediation for Sexual Harassment

Complaints in New Zealand” (1997) 27 VUWLR 585.

95 Hilary Astor “Swimming Against the Tide: Keeping Violent Men Out of Mediation” in Julie Stubbs (ed) Women, Male Violence and the Law (Institute of Crimonology, Sydney, 1994) at 147; Stephen Hooper and Ruth Busch “Domestic Violence and the Restorative Justice Initiatives: The Risks of a New Panacea” [1996] WkoLawRw 6; (1996) 4 Wai L Rev 101.

96 See generally Ptacek, above n 29; Anne Cossins “Restorative Justice and Child Sex Offences: The Theory and the Practice” (2008) 48 Brit J Criminol 359; Reid Howie Associates Vulnerable and Intimidated Witnesses: Review of Provisions in Other Jurisdictions (Scottish Executive Central Research Unit, 2002) at 82.

97 Kathleen Daly “Feminist Engagement with Restorative Justice” (2006) 10 Theoretical

Criminology 9 [“Feminist Engagement with Restorative Justice”].

98 Allison Morris “Critiquing the Critics: A Brief Response to Critics of Restorative Justice” (2002) 42 Brit J Criminol 596.

99 Daly “Setting the Record Straight”, above n 26.

100 C Quince Hopkins and Mary P Koss “Incorporating Feminist Theory and Insights into a

Restorative Justice Response to Sex Offences” (2005) 11 Violence Against Women 693.

category of “acquaintance rape” contains a large variety of offending – from rape within a marriage or a long-term relationship, to rape which occurs on a first date, or as part of workplace victimisation. Not all of these rapes may properly be dealt with outside the traditional criminal justice process.

In the Ministry of Justice’s Public Consultation Document, A Focus on

Victims of Crime, preliminary proposal 10 is:

[T]o make it a requirement that all eligible cases, where the offender has pleaded guilty and before sentencing, be referred for investigation of restorative justice, unless there are specific reasons not to.

The Consultation Document does not specifically discuss any extension to cases of sexual and domestic violence. However, as New Zealand is a world leader in the development and application of restorative justice, due to both Governmental and community initiatives, it is certainly timely to explore the appropriateness of restorative justice processes in the resolution of sexual offending.101

There are, however, many special considerations to take into account when formulating an appropriate restorative justice response to sexual offending, more than can be addressed by just following the current “Best Practice” model advocated by the Ministry of Justice. Not the least significant matter is the relative seriousness of the offending. Because rape complainants have most often been asked about their experiences of the trial process, any proposed alternatives should improve their experience, not worsen it. It has not been established to date that (all) rape cases can be effectively dealt with, from a victim’s perspective, by a restorative justice process. The indications are that it might be possible, but not in every case, not for every victim, and not without thoughtful development of the best process.102

There is the potential for the victim in a sexual assault case to suffer

further damage if she is not adequately supported and protected through a restorative justice process and if the convenor or facilitator is not aware of the power dynamics and inequalities that often occur in such cases (particularly where the offender is known to the victim). This requires specialist knowledge of the issues that are likely to occur. If restorative justice is to be offered in cases of sexual offending, there needs to be a commitment to funding and supporting expert providers to ensure that the process does not harm victims by exposing them to well-meaning, but unsafe, practices.

101 Judge McElrea raised this as a possibility in F W M McElrea “What Relevance Might Restorative Justice Have in the Case of Rape?”in Juliet Broadmore, Carol Shand and Tania Warburton (eds) The Proceedings of Rape: Ten Years’ Progress? (Doctors for Sexual Abuse Care (NZ), Wellington, 1996) at 109ff.

102 See Jülich and others, above n 38; Ministry of Justice Improvements to Sexual Violence Legislation in New Zealand: Public Discussion Document (Wellington, 2008). Key informants in Review of the Delivery of Restorative Justice in Family Violence Cases by Providers funded by the Ministry of Justice felt that the use of restorative justice as inappropriate for rape and other sexual offences; See Kingi, Paulin and Porima, above n 21, at 76.

C. Difficulties in Determining the Appropriate Level of State Intervention

Ultimately, the interests of the state and the broader community may have to take precedence over the wishes of the victim, particularly if a restorative process is utilized completely outside of formal criminal justice mechanisms. Where an offender is deemed to be dangerous to the community, then the wishes of the victim may need to be over-ridden in assessing the needs of the wider population. It is potentially difficult to set up adequate mechanisms to reliably allow for assessment that a victim’s choice be over-ridden in any situation. If such mechanisms were put in place, there is equally a danger that victim and community empowerment is eroded. This reflects the more general tension that is at the heart of the debate around greater use of restorative processes – what is the appropriate level of state intervention in community led resolution processes?

The appropriate level of State intervention could be determined differently for different communities. The resourcing of restorative processes can be a challenge for community groups.103 The level of State support may also determine the level of State intervention in setting guidelines and good

practice. It has been argued that rights and standards in restorative justice processes would ruin the restorative nature of the process,104 and certainly the community control can be lost where State standards are imposed. This is a difficult issue, and given the principle of consistency where criminal justice type sanctions are able to be imposed, there is a traditional reluctance to expose offenders to variable sanctions on the basis of victim views.105

D. A Restorative Process that is not Confined to One Stage of the

Criminal Process

Despite the challenges, where the case is appropriate (where there are no issues of community safety involved, for example), and where both the victim and offender consent, then there is potential in allowing for restorative processes at any point of the traditional criminal process. There are challenges in funding processes along any point of the criminal process, but examples of points at which restorative processes could be employed are: diversion from court, pre-sentence, as a condition of sentence, post-sentence in relation to release on parole, or post-treatment. Much of the debate focuses on the availability of restorative processes as an alternative to court.

If restorative processes are considered before any complaint to police, or before trial or formal adjudication of guilt, then the following elements should be present (all except an agreement not to enter the criminal process should also be present if the restorative process takes place pre-sentence, as a condition of sentence or post-sentence):

103 See also Mossman and others, above n 93, at 89 ff.

104 John Braithwaite “Setting Standards for Restorative Justice” (2002) 42 Brit J Criminol 563.

105 Ashworth, above n 91.

• Both the victim and offender should consent (there should be mechanisms to ensure that no direct or indirect pressure is placed on either the victim or offender to participate). The initial choice should be the victim’s. Care would need to be taken that victims are not pressured into a restorative process by police or prosecutors simply because they feel that there is not a reasonable prospect of a conviction;

• Community safety should be an overriding consideration, and the exception to the ability of victims to choose (for example, a victim may want to have a restorative conference, but the requirements of community safety favour prosecution);

• Facilitators should be trained not only as restorative justice facilitators but also as specialists in sexual violence restorative work;

• The process should include an agreement not to enter the formal criminal justice process unless there is no agreed resolution reached, or agreements not carried out;

• In order to protect the due process rights of the offender, discussions should be without prejudice. This is particularly important where restorative processes are used as an alternative to the criminal process, because to be successful the offender should admit responsibility for the offending (restorative justice does not adjudicate or mediate facts)106.

• There should be either a face-to-face meeting or the offender is to meet with the representative of the victim;

• Appropriate ground rules should be set for behaviour and what can and cannot be said; and

• The restorative process should take place at an agreed site (this could be a marae) – drawing on the Project Restore community referred model.

This process could be part of a broader programme of education and treatment facilitated by experts in the field. It could be an alternative to the formal process, run in parallel with or be integrated into the formal criminal process, although care would be needed in order to avoid undermining the formal and/or restorative processes when marrying them together. Restorative processes could be combined with treatment in order to address rehabilitation.

VI. An Alternative Way within the Formal Criminal Process The criminal process is concerned with addressing harm. This is the primary basis upon which offences are criminalized and action is taken by

the criminal law. The 1983 New Zealand Rape Study concluded that: 107

106 Daly “Feminist Engagement with Restorative Justice”, above n 97.

107 Warren Young Rape Study Volume 1: A Discussion of Law and Practice (Department of Justice, Wellington, 1983) at 34.

[R]ape is an experience which shakes the foundations of the lives of the victims. For many its effect is a long term one, impairing their capacity for personal relationships, altering their behaviour and values and generating fear.

In terms of harm theory, the interests threatened, and which must be addressed, revolve around sexual autonomy and sexual choice. Beyond the mechanisms of privacy and personal autonomy lies the fact that sexuality is part of one’s personality. The mode and type of expression of sexuality has, at its core, the need that it should be voluntarily expressed.108 Sexual offending is harmful because it involves what is deeply personal, taking without consent what an individual should be able to choose to share consensually.109

The law has traditionally been poor at recognizing the harms associated with humiliation and exploitation, but it can be argued that there is a special wrong involved in sexual offences: a violation that is different from the violation of physical autonomy.110 There is therefore an argument that the lack of responsiveness of the criminal justice process to the needs of victims of sexual offending stems from the very structure of criminal law’s approaches to the criminalization of behaviour. It should, however, be emphasized that the rules themselves are mediated by considerable discretion at each point in the process, and as such it is likely that both the formal legal rules and the discretionary decision-making of criminal justice agents affects the prosecution of sexual violence cases. This needs to be borne in mind when contemplating the effect of any changes to substantive or procedural law.

The effect of rape myths on the attitudes of actors in the criminal process was discussed in another paper for this workshop.111 Social attitudes, including the attitudes of policy and decision makers, have arguably operated to minimize the response to the unique issues involved in sexual offending. A Home Office (E&W) survey concluded that to prevent and successfully prosecute more sexual offending there needs to be a “willingness both to question and to change the pattern of social life. If this is so, it is unlikely to be achieved easily or quickly”.112 The criminal law and criminal justice process needs to play a part in this, given that there is clear evidence that attitudes within the system may affect the proper prosecution of sexual offences.113

108 See Stephen Schulhofer “Taking sexual autonomy seriously: Rape law and beyond” (1992)

11 Law and Philosophy 35.

109 For a more in-depth discussion of these issues, see John Gardner and Stephen Shute “The Wrongness of Rape” in Jeremy Horder (ed) Oxford Essays in Jurisprudence (Oxford University Press, Oxford, 2000) 195.

110 M Childs “Sexual Autonomy and the Law” (2001) 64 MLR 309.

111 See Yvette Tinsley “Investigation and decision to prosecute in sexual violence cases: navigating the competing demands of process and outcome” in this issue. See also Payne, above n 84.

112 L J F Smith Concerns about Rape (Research Study 106, Home Office, 1989) at 36.

113 Jennifer Temkin “Prosecuting and Defending Rape: Perspectives from the Bar” (2000) 27

Journal of Law and Society 219.

A. Possible Alternative Trial Process

The possible alternative process we propose here is not necessarily a “package” that has to have all elements below within it. These elements are a collation of reform options and potential changes, gathered together to offer an alternative way forward within the existing common law structure. Utilisation of key aspects of civil law systems creates a less adversarial focus, which may allow for a more “victim-centred” approach. It is inspired by the fact that: 114

Giving victims of crime the opportunity to tell their story in their own words in a secure and relaxed environment is not only necessary to protect the interests of the individual victims, but it also has the potential to act as an indispensable aid to truth-finding. In doing so, this should serve not only the interests of victims, but the integrity of the criminal justice system as a whole.

It would require significant recasting of the roles of judge, jury and counsel.

• Cases are heard in a different forum to a formal courtroom;

• A possible change in decision-maker for indictable sexual offending

(e.g. one or two judges, two to three lay people);

• The judge oversees proceedings to proactively protect witnesses from inappropriate questions;

• The hearing will be strictly limited to the matters in dispute, potentially reducing the number of witnesses heard in “court”;

• The judge may have seen all other evidence before the hearing;

• The evidence from the complainant is presented first. The complainant may have an advocate or legal representative;

• Evidence is to be given in narrative form and the judge will then question the complainant about her story, in order to draw out any inconsistencies and explore the evidence;

• There will be able to be relaxed rules of evidence regarding opinion evidence/ previous consistent statements etc, as the judge can accord relevant weight;

• After the judge has questioned the complainant, the defence will be able to ask questions if these are not repetitive of what has already been asked;

• The defendant will be present but cannot directly ask questions of the victim;

• Alternative ways of giving evidence may still apply;

114 Jonathon Doak “Victims’ Rights in Criminal Trials: Prospects for participation” (2005) 32

Journal of Law and Society 294 at 316.

• The complainant may possibly give the evidence and be questioned by the judge and defence counsel before the hearing, and the recording played back during the hearing;

• Following questioning of the complainant, the court will hear from the defendant or the defendant’s lawyer – although it is expected that the defendant will be asked questions personally. This is similar to the civil law process of treating witnesses as “of the court” rather than “of the parties”.115

• Decision-makers must give reasons for their verdict. The verdict can be by majority;

• If it is decided that the defendant is guilty of committing the offence, there will be a separate hearing to decide upon a sentence, in which both the victim and defendant get input (with supporting documentation required);

• The sentence should be decided by all decision-makers as a group;

• This trial process should be agreed to by the complainant and defendant;

• A lesser penalty/ charge is available when offenders elect this alternative trial process.

In assessing any model of criminal justice, it is useful to have reference to the general principles of criminal law. In doing so, however, it should be remembered that the principles themselves are necessarily tied to the Anglo- American legal tradition. These principles are therefore not unarguable truths. Principles may conflict with each other, and societal values clearly play a part in the emphasis that should be placed on any particular principle. One important principle of criminal law is that of consistency – the requirement that participants (particularly defendants) be able to know what to expect from the criminal law, what behaviour is sanctioned, what level of sentence can be expected and so on. Where an alternative model operates in tandem with the mainstream system (as in our model above, or in restorative processes) there is the potential for inconsistency of approach, outcome and penalty. It has been claimed that the “practical and philosophical difficulties in applying [an inquisitorial] model to a single category of offence are insurmountable”, in part for these reasons of consistency.116

115 Albin Eser “The ‘adversarial’ procedure: a model superior to other trial systems in international criminal justice?” in Thomas Krussmann (ed) ICTY: Towards a Fair Trial (Neuer Wissenschaftlicher Verlag, Wien, 2008) 207 at 226.

116 Standing Committee on Law and Justice Report on Child Sexual Assault Prosecutions

(Parliamentary Paper (New South Wales Parliament) Number 208 (Report 22), Tabled on

13 November, 2002) at 212 cited in Criminal Justice Sexual Offences Taskforce Responding

This model also raises other issues in relation to fairness to the accused. Defendants will still have access to a lawyer, will still have the right to prepare a defence and ask questions of witnesses, and proper weight will be given to admissible evidence.117 Although on its face this model looks to reduce the ability of the defence to redress the inequality of arms, there could also be a positive effect as the defendant would be able to have more active involvement in his or her trial, and as such may be more empowered.118

In order to have this positive effect, however, there will need to be cultural change around perceptions of the criminal law and the role of the State.

B. Diverse Groups

It should be emphasised that this conception of an alternative way within the current process is still necessarily tied to the mainstream process and is still open to criticism because of this. In particular, it is not structured to take any particular account of Māori or Pacifica traditional dispute resolution. The main underlying principle behind the criminal justice process is the principle of individual autonomy. This means that each person is treated as being responsible for his or her behaviour.119 Despite international trends towards therapeutic jurisprudence,120 the emphasis on individual responsibility remains paramount. This runs counter to notions of collective responsibility in Māori criminal legal tradition.121

As Ashworth observes, the criminal law is a conservative force, prescribing “coercion to enforce conformity with the norms of those with dominant interests in a given society”.122 Jackson’s123 point is that changes to the criminal process by utilisation of restorative justice processes “hijack” and exploit Māori culture, whilst alterations to the traditional system still leave a colonial system that is disempowering for Māori.124 Quince summarises this well, stating that Jackson and others125

posit that access to and participation in a secure and healthy Māori cultural identity is central to addressing the crisis posed by Māori caught in a vicious cycle of poverty and harm. Such poverty is often of the economic kind, but may also encompass poverty of

to Sexual Assault: The way forward (Criminal Law Review Division, Attorney-General’s

Department NSW, 2005) at 172.

117 See also Anne Cossins “Prosecuting Child Sexual Assault Cases: To specialise or not, that is the question” (2006) 18 CICJ 318 at 331 ff.

118 Jacqueline Hodgson “Conceptions of the Trial in Inquisitorial and Adversarial Procedure” in Antony Duff and others (eds) The Trial on Trial Volume Two: Judgement and Calling to Account (Hart Publishing Ltd, Oxford, 2006) 207 at 235 ff.

119 The free will vs determinism debate continues to rage: see Richard Gross “Free will and determinism” in Themes, Issues and Debates in Psychology (Hodder & Stoughton, UK, 2003) at 241.

120 Drug courts, problem solving courts and community justice courts are three examples of international attempts at integrating a treatment based approach into the criminal process.

121 Moana Jackson “Criminality and the exclusion of Māori” (1988) 20 VUWLR 23.

122 Andrew Ashworth Principles of Criminal Law (Oxford University Press, Oxford, 2009) at 17.

123 Moana Jackson He Whaipaanga Hou: Māori and the Criminal Justice System: A New

Perspective (Ministry of Justice, 1988).

124 Jackson, above n 71..

125 Khylee Quince “Māori and the Criminal Justice System in New Zealand” in J Tolmie and W Brookbanks (eds) The New Zealand Criminal Justice System (LexisNexis, Auckland, 2007) at 335.

the mind, heart, spirit, and soul. A secure and healthy identity is one where people can access knowledge of their language, and cultural norms and practices, which are, in turn, valued, promoted and enforced in our larger society and legal system.

Further research on the needs and experiences of diverse populations, including but not exclusively Māori, is required. This should include significant input and ownership from those who are members of the populations considered, to ensure that “solutions” are not imposed without consideration of the unique issues involved for each population.

VII. Conclusion: Prevention and the Requirement for

Broader Societal Change

This paper has outlined some of the alternative processes currently operating within New Zealand and across other jurisdictions, setting out some possibilities for more radical alternatives to the traditional adversarial trial. As with many methods of addressing offending, the model set out above cannot be said to offer the primary method of protecting individual and societal interests. It does not address prevention, and so other methods of preventing sexual offending, such as social crime prevention, social policies and educational campaigns and policies, should also be considered. Treatment based programmes could be utilized in tandem with the model, or with restorative justice processes. Incentives for treatment could be built into these criminal justice responses. These offer the possibility of addressing reoffending in a more holistic sense than either the criminal process or restorative approaches alone.

A significant issue affecting all points of the criminal justice response, from reporting, through police response, prosecutorial decisions, trial participants and decision-making, is that decisions are mediated through the lens of public opinion about sexual offences. In another paper for this workshop,126 “real rape” myths and their effects on the initial stages of an

investigation and prosecution are discussed. Long term change in societal

attitudes is required in order to assist in the prevention of sexual violence, and also to effect change in the response of the criminal process once an offence has been committed. Reform of the law and legal processes can only have limited effect if incorrect beliefs prevalent in society are not addressed. In the UK, Sara Payne, the Victims’ Champion, reported that in her discussions with victims, police and prosecutors:127

Everyone I spoke to felt strongly that these attitudes need to be challenged as they affect the whole process the victim goes through ... In order to challenge these attitudes, many of the women I spoke to felt that a substantial public information campaign was needed that challenges these attitudes, and makes it clear that responsibility lies with the perpetrator.

One respondent in Payne’s report said that:

[T]he advertising we have had so far puts all the onus on the victim, it’s ‘don’t go out and get drunk, you might get raped’. The onus needs to be on the man, to stop women feeling shameful.

126 See Tinsley, above n 111.

127 Payne, above n 84, at 10.

In consultation carried out for the current project, the need for a public awareness campaign was also a strong theme, with the drink drive and “it’s not OK” campaigns cited as examples of successful public awareness campaigns.128 Certainly, innovation is needed to try to start a process of change in public attitudes, without which criminal law and justice reform can only serve to make very limited progress in improving the experience and outcomes for victims of sexual violence.

128 We are particularly grateful to TOAH-NNEST for allowing us to speak with them at their annual hui in 2010.

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