Real Rape Real Justice

December 1, 2011

I heard an interview on Radio NZ this morning with the  Elisabeth McDonald and Yvette Tinsley about the book they have just coauthored called “From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand”. You can read about the book here.

Basically the book makes recommendations for changes to the justice system so that survivors of rape/sexual abuse/assault who go through the legal process would get greater satisfaction from the process. Interestingly, they pointed out that achieving a prosecution isn’t always the main goal for complainants. It could be about acknowledging the harm done, seeking treatment for the offender or getting assurance that the abuse will end.  First *duh-I-should-have-known-that-moment*. Of course, meaningful justice for a survivor doesn’t equal prosecution.

It was pointed out that due to the fact that rape is more often perpetuated by people known to the surivivor (family and friends) the maximum penalty of 20 years for a guilty verdict could act as a deterrent BOTH to the survivor AND the perpetrator. The survivor may not want to see their father/ex-partner/etc to go to jail for 20 years. Second *duh-moment*. I’ve heard myself say things like ‘throw the book at the bastard!’ when hearing about perpetrators of sexual violence and this was the first time I had thought about how a guilty verdict might inflict further damage to the survivors life. I hadn’t thought that the potentially long prison sentence might act as a deterrent for survivors seeking justice. (Roughly only 10% of survivors report these crimes and only about half of those make it to court.)

The potential lengthy prison sentence apparently is also a deterrent for perpetrators to plead guilty. The authours stated that if the outcome of a guilty verdict was restorative justice or treatment, it is possible that more perpetrators would own up to their crime and take accountability for their actions. This feels hard for me to believe but I think that this is because I’ve maintained an image of perpetrators in my head which is quite black and white. This was *duh moment* three. Not all perpetrators feel zero remorse or are completely unwilling to accept responsibility or seek help to change.

They also suggest (but not quite recommended) that it might be better lose the jury (adversarial) and instead rely on specially trained judges (inquisitorial) with (maybe) some lay person input. This is due to the pervasiveness of rape mythology which still permeates our society. People still largely think rape/sexual abuse/assault is done by strangers. Now I’m no law expert but to me this seems like a HUGE change to a system that has been in place for literally centuries. There might be other situations which depart from the jury system but I don’t know about them.

But I’m comfortable with changing the old system. I would like to think that as wisdom grows we can change traditions, rituals and laws which create damage. And the current legal process is damaging to survivors of rape who seek justice. The authors pointed out that if community level education was in place then over the long term those myths might go away, but until then (and these are my own words) we can’t trust juries to reach a fair verdict. Let’s repeat that. Sometimes we can’t trust juries to reach a fair verdict due to pervasive and incorrect beliefs. Wow, when else might this be true??

If community education is a formal recommendation (and I’m not sure it was) I would be interested to who they recommend should pay for it and who should deliver it? It’s all very well to say we need more community education but this will not become a reality until enough secure and reliable funding is provided to experts who can deliver this community education.

There were other bits in the conversation which were interesting, including a discussion about establishing consent and criminal liability but I wouldn’t be able to do the analysis justice.

The next steps are that the law commission will respond to the research and do some public consultation. Let’s keep an eye on this, it’s an opportunity to make a real difference to a difficult process which stops survivors (and perpetrators) from seeking resolution and justice through our legal system.


I’m sure some more seasoned bloggers will pick up on this story and I’ll link to them here when they do.


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