The thought of facing cross-examination in court can be enough to compel victims to keep rape a secret. But what if there was another path to justice? Kirsty Johnston reports
Justice found Paula* not in a courtroom but at home. It had taken 30 years for the Auckland professional to reveal that her uncle had sexually abused her, and when she did, her father immediately called a family meeting.
“Everyone came with their partners and the like. My father opened by confronting my uncle about the abuse – by then a lot of other victims in the family had spoken up – and everyone was horrified,” Paula says.
“My uncle kept saying he was sorry, so sorry. And even though he didn’t direct it just at me . . . it gave me validation.”
Some family members then also took matters to police.
“He wasn’t convicted,” Paula says. “It was decided the charges were too old for him to mount a defence. My uncle pleaded not guilty despite all the people in the room that day hearing him admit what he’d done.
“In the end, a process whereby we sat around a room where we talked about it honestly gave me a bigger sense of justice than 18 months worth of court hearings. It was empowering and it helped protect our family. No-one was keeping secrets.”
That was in the mid-1990s. These days, the kind of meeting Paula’s family initiated is called restorative justice. It involves a face-to-face encounter between the offender and the victim, their families, and professional mediators, who help each side address their feelings and help each party find redress. Where appropriate, this may include offender therapy.
It is also at the centre of most ideas about what an alternative process for dealing with sexual offence cases might look like.
“What we have found,” says Elisabeth McDonald, Victoria University associate law professor and author of the book From Real Rape to Real Justice, “is that not everyone wants the outcome to be long-term imprisonment. Women might not want to go through the trial process, to carry around the details with them for two years so they aren’t accused of remembering incorrectly.
“What they do want is an apology and an acknowledgement and they don’t want it to happen again.”
McDonald’s research was central to a Law Commission draft report that suggested the need for more options for rape victims – not only within the current criminal court process but in some cases completely outside it.
Currently, the rough outline for the process would see victims enter an alternative process either before a complaint to police or at the point of complaint, rather than progressing to a trial. It needs agreement from both victim and accused, with willingness on behalf of the perpetrator to accept intervention.
It would be confidential but not wholly immune from reverting back to a criminal process if further revelations of serious offending arose, and would require specialist outside services such as counselling to run alongside it.
Critics who made submissions to the Law Commission have said that system would effectively be “letting criminals off the hook” but as McDonald points out, without options other than court, that is happening anyway.
“Currently the consequence of not having an alternative system is that they’re all let off the hook. We need a process that gets them to address behaviour.”
She says it would not be for every case – mainly for circumstances where offender and victim know each other and not where there are serious violence, power or control issues. “We’re talking about the cases that would otherwise fall through the cracks.”
About 10 per cent of rapes are classified as “stranger” rapes and they would remain in the criminal system.
Political support for such a system comes from both sides. Justice Minister Judith Collins recently gave funding for more restorative justice programmes but she is yet to engage on the idea of forming an out-of-court process for sexual assaults.
Labour Justice spokesman Andrew Little said the issue was complex, but there needed to be an urgent change to restore public confidence.
“On one hand, where there is criminal wrong-doing there is a sense you want people to be called to account,” he said.
“On the other hand when it comes to sexual offending and the victim and the offender know each other, perhaps a process that enables an offender to understand what they’ve done is wrong and a system that allows the victim to get redress may be better.
“It’s about having a system that can gauge what approach is better in the right circumstances.”
Project Restore is the country’s only restorative justice organisation that deals solely with sexual abuse cases.
It is funded to take 40 cases in the next 18 months. Ten of those are allowed to be referrals from the community, therefore outside the formal court system. The group tries to offer alternative outcomes for victims. Massey University lecturer Shirley Julich, who helped form Project Restore, says far from being an easy way out, it can often be more challenging for offenders to face up to the harm they have caused.
“It can be much harder than going to court. You have to eyeball your victim and your family in a room.”
Julich believes restorative justice needs to sit alongside the criminal system, not to replace it. “I wouldn’t like to see sexual violence decriminalised. But we do need to have options.”
Project Restore leader Fiona Landon said the help it is able to provide is a “drop in the bucket in terms of the potential demand”.
It works best, she says, where the victim and the offender know each other. It doesn’t work quite so well with date rape scenarios, because the offender often fears he will end up in court anyway.
“It has a lot to offer for those who don’t want to use the criminal justice process but want something that’s going to be well supported, safe and will meet their needs.”
*Name changed to protect identity
– Sunday Star Times