While the law and order debate is dominated by political rhetoric regarding each party’s relative toughness on crime, there is one area where all parties agree. Derek Cheng looks at how the criminal justice system is changing to protect and empower victims.
“‘Cos he buys lollies and chewing gum and noodles.”
This was a six-year-old’s response while being cross-examined in court about why she kept going to her grandfather’s bach despite being sexually abused there.
It followed a question about whether she had liked “Poppa putting his finger in your [vagina]” which prompted the judge to intervene.
It is one of several horrific examples of the lines of questioning children have been subjected to in sexual abuse trials which would no longer be allowed under new legislation that passed its first reading just before Parliament rose last week.
The Victims of Sexual Violence Legislation Bill is perhaps unusual as all political parties support it: Labour, National, Act, the Greens and Te Pāti Māori. Law and order can, and usually does, quickly descend into accusations of lowest-denominator political rhetoric about how one side is putting the public at risk more than the other side.
On a pragmatic note, though, it’s not surprising that all parties agree the criminal justice system treats victims poorly and this needs to be addressed.
How poorly was laid bare in chief victims adviser Dr Kim McGregor’s 2019 report, which found that victims were unheard and unseen, and had few rights compared to offenders.
Many victims don’t know their rights to be heard for bail, parole or name suppression hearings, or aren’t told when or why their case has been changed. Some arrive in court and are triggered when they find the accused waiting for the same elevator, or sharing the same space while waiting for their case to be called.
The treatment of children under cross-examination in cases of sexual offending was investigated in That’s A Lie, a 2021 report written by Dr Isabel Randell and commissioned by McGregor following complaints from families who had heard such disturbing questions being posed in court.
The questioning often sought to push sexual violence myths aimed at challenging a child’s credibility, the report found. Such myths include that children will scream or run away, or lay a complaint immediately, and that the absence of those actions suggests the complaint cannot be true.
“Young complainants report cross-examination to be highly distressing, and this distress is likely to be largely due to the tactics of cross-examination highlighted in this paper,” Randell wrote.
”This distress seems in many cases to be needless and avoidable, and certainly not conducive to quality of evidence.”
McGregor told the Herald asking children in such cases about consent was an “egregious practice” that had distressed “countless children over many years”.
“I have heard from many shocked and distressed parents, some with children as young as 6, who have been asked about consent. This practice has perpetuated harmful victim-blaming myths and misconceptions, including the false notion that a child can hold responsibility for the sexual abuse.”
In recognition of this latter point, consent or reasonable belief in consent is not relevant for the crime of sexual conduct with a child under 12.
They are common defences in rape cases, however, and prosecutors often pursue rape charges in cases with child victims because the maximum penalty for rape (20 years’ imprisonment) is longer than that for sexual misconduct with a child (14 years). This inadvertently opened the door to consent questions when children took the stand, however.
The bill would make 20 years in jail the maximum penalty for both offences, meaning prosecutors can pursue the child-specific charge without risking a shorter sentence - and where questions about consent remain inadmissible.
Name suppression for rape victims - including in the case of incest - is automatic, but the process to have it lifted is cumbersome, costly and disempowering for victims.
“Complainants often have to bear the cost of a lawyer if these applications are made after the trial has ended,” wrote barrister Nicki Pender in her 2020 research into name suppression for victims of sexual violence.
“Some victims have spent thousands of dollars attempting to have their name suppression lifted so that they can tell their story and the public can know who harmed them.”
This latter point is about how an offender can keep their own identity secret by hiding behind the victim’s name suppression - if the victim and offender are close or share the same surname, then naming the offender can identify the victim, so both names end up being suppressed.
“Victims often fear an offender can hide under their name suppression and go on to harm others who have no knowledge of their previous history of harm,” Pender wrote. “Other victims simply want the right to self-report.”
McGregor, who also commissioned Pender’s research, said the bill would introduce a new process so lifting name suppression can be done in an easy and timely way.
“I have spoken to so many victims who have been left feeling incredibly disempowered and re-victimised by the struggle to get their own name suppression lifted. This is wrong. I am certain that making the process to lift their name suppression easier will empower victims.”
These changes are a continuation of what’s been happening, albeit at a glacial pace, since her 2019 report. A new victims operating model was funded by $45.7 million over four years in Budget 2022, which McGregor described at the time as “hugely significant”.
That work is under way, and McGregor said the current work across the system is something she hasn’t seen in the seven years since she started in her role.
“I have seen a massive shift in focus across the justice sector, with many government officials now working in multiple parts of the justice system with a focus on victims.”
Three pilot programmes are also hoping to make a difference, the first involving hearing a victim’s voice at the first bail hearing.
Victims of serious crimes - including sex crimes, serious assault, or an offence that has led to ongoing fears for the victim’s safety - have the right to have their views heard for bail hearings.
The law says the prosecutor must “make all reasonable efforts” to get their views, but in practice, that doesn’t seem to cover getting up too early in the morning; victims’ views are often not known in bail hearings because it’s hard to get ahold of them before a 10am bail hearing.
“There is often limited time to get details of the case and identify and contact the victim to get their view before the case is heard,” said Erin Judge, sector directorate executive director at the Ministry of Justice.
The Whangārei-based pilot has introduced a “cross-sector” team to review overnight arrests, triage cases and identify the victims “first thing each morning”.
The second pilot, in Manukau District Court, provides a safe space outside of the court building for child witnesses to give evidence, meaning they don’t have to see or share the same space as the accused.
“The pilot is introducing multi-agency contact plans, so everyone working with the child provides joined-up and consistent support, as well as child trauma and development-based training for people who work with child victims of sexual violence,” Judge said.
This deals with a common criticism of government agencies - that they’re siloed, are too narrowly focused and don’t talk to each other.
The third pilot also involves a new cross-sector team, which is victim-led.
“If they need safety planning around attending court or having an advocate, the team will co-ordinate with the victim and the appropriate services,” Judge said.
The team will also keep victims informed of how the system can help them, such as signing up to the victim notification register so they’re told if the offender escapes from prison, for example, or is released on home detention or breaches a condition of release.
“This is a proactive approach, rather than the current reactive approach,” Judge said.
The pilots will have their final evaluation in July next year.
In April, the Government announced an extra $2.2m would be allocated to the Victim’s Assistance Scheme for an additional 10,000 grants for victims of serious crime.
What is actually hoped to be delivered on the ground includes a new grant for up to 15 hours of trauma counselling at a maximum rate of $200 per hourly session.
Whether the workforce is there to supply such services remains an open question.
A new supplementary grant for up to $2000 will also be available for rape survivors whose needs cannot be met by the existing $500 lump sum payment, which is for the generic purposes of “dealing with the aftermath of the crime”.
The supplementary grant is likely to be gobbled up quickly, given the plethora of issues it can be used to cover: installing new locks or alarms; replacing stolen or damaged items or things that are needed for forensic evidence, such as clothing or bedding; covering travel costs for medical appointments or to give evidence to police; or simply to offset lost income for time away from work.
An extra $2000 will also be available for the families of homicide victims to cover funeral costs, travel costs to attend funerals, and possible loss of income. This grant is being boosted from $5000 to $7000.
Additionally, there has been a commitment from both Labour and National to consider affirmative consent legislation. This would effectively shift the onus on to a person accused of sexual assault to show consent was given.
Overseas, such a move has been described as crucial in tackling victim-blaming and outdated attitudes around sexual violence. Currently, New Zealand only has a definition of what consent isn’t, not what it is, which leaves interpretation up to lawyers and jurors.
The commitment follows a petition and a select committee report which showed unanimous support from its members - including MPs from Labour, National and Act - for the Government to consider re-examining the law on consent.
Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery and is a former deputy political editor.
It follows concerns about use-of-force powers being given to staff.