And Justice For All? – Unheard and unseen: The calls for more rights for victims

New Zealand’s criminal justice system isn’t serving victims, offenders or whānau.
Calls for urgent reform have not been met with Government action. But there is cause for hope. Today, Derek Cheng looks at what’s changing for
victims of crime.

Unheard, unseen, and with no rights compared to offenders.

Victims’ experiences of the criminal justice system are so traumatic, in fact, that many advise others not to lay police complaints at all.

“Only a quarter of victims ever report their crimes to police,” says chief victims adviser Kim McGregor.

“With family violence, it’s less than 20 per cent and with sexual violence, only six out of 100 cases of sexual assault will be reported to the police.

“Some victims have reported that the criminal justice system further harmed them, and for some the experience was so awful that they would advise others not to report crime to the police.”

According to the annual crime and victims survey, about 30 per cent of adults were victimised once or more in the previous 12 months.

The most common are fraud/deception (21 per cent), harassment/threatening behaviour (15 per cent), burglary (15 per cent), robbery and assault (14 per cent), and sexual assault (10 per cent).

The survey suggests pockets of revolving doors of crime and victims, with just 2 per cent of adults experiencing a third of all crime. More than a third – 37 per cent – were victimised more than once within 12 months of being interviewed, and they collectively experienced 69 per cent of all crime.

And almost half of the victims (46 per cent) of offences by family members experienced most (82 per cent) of all such offences.

McGregor says little has changed in the system since she delivered her report – Te Tangi o te Manawanui – to the Government in December 2019.

There is still no way to track victims through the system, including their complaints or whether their rights are able to be exercised.

But there is, she says, cause for optimism.

Victims can be 'completely ignored'

Her report includes dozens of anonymous testimonials about victims’ experience with the criminal justice system.

“Not knowing or understanding what is going on adds to the stress and trauma,” says one.

“What about the 75 per cent of victims who aren’t making it to court or don’t want to go through that process because doing so causes irreparable harm to their families?” says another.

McGregor summarises victims’ experience as feeling “completely invisible” in the system.

“In the adversarial system, the Crown takes the case for the community against the accused. They’re not representing the victim. So the victim has no say in the case, whether it goes forward, what the charges are.

“Ironically, the prosecutors avoid spending time with the victim in case the defence accuses the Crown of coaching witness. And if the prosecutor doesn’t need the victim to give evidence, then the victim can be completely ignored.”

Victims have a right to be heard on applications for name suppression, bail, parole and to make a victim impact statement – but this right comes with caveats.

“I’ve had a homicide victim who stood up to read their victim impact statement, and found that it had been mostly blacked out,” McGregor says.

Her report made four recommendations to the Government – none of which have come to fruition fully.

The first is an independent advocate to walk through the criminal justice system with victims and their supporters.

That exists, but only for those who families of homicide victims. Victim Support also helps, but doesn’t have the resources to connect with most of the victims of serious crime.

The Ministry of Social Development has started a similar service with six to eight specialist advocates for victims of sexual violence in five areas across the country.

“I’d like to see those, once they’ve been piloted, evaluated and then expanded to victims of other serious crimes,” McGregor says.

A support person could find out why, for example, police haven’t been in touch with the victim, what court dates are, or explain why charges might have been downgraded.

“I absolutely believe that they should have all the information about what is happening. That is their right in the Victims’ Rights Act, and that right is not being fulfilled currently.”

Although it would be helpful if police asked victims for their view on whether a charge should be laid, McGregor says victims understand that the police decision is independent and proof beyond reasonable doubt needs to be established in court.

“They understand that they won’t get all the sentences they want. But what they do want is fairness. They feel offenders have all the rights, and they have very, very few.”

Recommendation number two is support for victims, including those who don’t make police complaints.

McGregor notes some specialist NGOs such as Women’s Refuge or Wellington Rape Crisis, and counselling that is sometimes available through ACC.

“But there isn’t an integrated system of ongoing support to help victims recover and heal from crimes committed against them.”

McGregor has heard of victims having to work their way through a maze of 20 services to find what they need.

“If your dairy is robbed, you’re beaten up, your wife and children traumatised because you live on the premises, you’re going to need a whole lot of social services to deal with that trauma,” she says.

“And those business owners have to open basically the next day, because it’s their livelihood.”

Recommendation three is alternatives to the current criminal justice system because, again, most victims don’t lay police complaints.

Restorative justice services happen after a guilty verdict or plea, and can lead to a shorter sentence. McGregor has commissioned research into whether offenders are really trying to be part of the healing process, or just trying to spend less time behind bars.

The victims’ workshop in 2019 that preceded McGregor’s report heard a strong view in favour of “by Māori, for Māori” resolutions.

“There are significant differences in philosophy and practice at every stage between Māori and Pākehā justice,” Dean of Law at Auckland University of Technology Khylee Quince told the workshop.

“Whereas the cornerstone of modern Pākehā justice is arguably backwards-looking, retributive justice, a Māori approach is strongly forward-focused, in terms of repairing disrupted relationships, and achieving mediated outcomes acceptable to all parties, including victims of wrongdoing.”

McGregor has also commissioned bi-cultural research into restorative justice processes, including kaupapa Māori services.

“We can get an idea of what is happening and then we can maybe build from there.

“Most victims want the harm they experienced to be acknowledged, to receive an apology and some would like compensation for their losses. The adversarial system doesn’t do that.”

And, fourthly, McGregor wanted an independent body to hear and investigate complaints, reduce barriers to reporting crime, monitor victims’ rights and check to see whether they are being implemented.

Similar entities exist in the UK, the US, Canada, and in every state in Australia, she said.

“We can’t track victims in the system. The Police have one IT system. Justice has another, Corrections has another – and none of them link up, so we don’t know.

“Meaningful transformation of the criminal justice system for victims is unlikely without a specialist victim-focused mechanism such as a Victims’ Commission or a Victims of Crime Ombudsman.”

What movement has there been?

There has been no indication of a commission so far.

“I asked Secretary of Justice Andrew Kibblewhite to set up a Victim Leadership Group of senior managers across Justice, Police, Courts, Corrections, Oranga Tamariki, improving safety, systems and services for victims. He set that up immediately,” McGregor says.

“It’s a start. I’m still getting complaints. That’s why I keep asking for a Victim’s Commission because I want one place to hear all the complaints, and then we can have a continuous improvement loop so we can go back and fix the gaps in the system.”

She has also been consulted on the Te Ao Mārama model to ensure the planned changes to the district court are victim-friendly.

Too often, to victims’ horror, they have walked through a court entrance or taken an elevator at the same time as the accused.

“I was able to bring a group of victim advocates together to advise the innovative courts design group. Victims of crime have been asking for separate entrances, for example, to court for 30 years,” McGregor says.

“Hopefully, this time they will be listened to.”

Justice Minister Kris Faafoi has repeatedly refused to be interviewed by the Herald on his plans for the justice sector for nine months, but McGregor has met him.

She believes Faafoi and other ministers are genuinely driven to improve the system.

“Everyone’s getting on the same page. We need to transform. It’s not working for offenders. It’s not working for victims. It’s not working for the public,” she says.

“I believe they’re starting to join up all their efforts – the judiciary, the ministries – and then of course there are 10 ministries working together on family violence and sexual violence. That’s never happened before.

“Of course, I want things to be faster, and more. But I also want to give credit to what has started. It’s not going to be delivered by one Government. This is going to need at least a decade or more.”

The series

Wednesday: How the justice system is failing New Zealanders.

Thursday: The changes that are underway and who’s behind them.

Today: The rights of victims and reasons for optimism.

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