Helping jurors to understand: Misconceptions about delay in making a complaint

In a sexual offence case, jurors may have misconceptions that inappropriately affect their evaluation of a complainant’s evidence, for example, where the complainant has not complained at the first reasonable opportunity to do so. In Victoria, a judge may assist jurors to understand why a complainant may not have complained earlier by providing examples that are not drawn from the evidence. The Victorian Court of Appeal has recently questioned the legislative authority to do this. This article answers the Court’s question. It also considers the Court’s obligations to address this misconception, having regard to a complainant’s interests, to ensure a fair trial.

Should the use of an alternative trial process preclude referral back to the criminal justice system? Consideration of one aspect of the Law Commission's proposal for trial process reform in cases of sexual offending

<p>In its recent Issues Paper, Alternative Pre-Trial and Trial Processes: Possible Reforms, the New Zealand Law Commission proposed to make available some form of restorative justice process as a complete alternative to the criminal justice system in certain sexual offence cases. It also proposed that where an offender participates in an alternative process in good faith and fulfils all undertakings, the case cannot be referred back to the criminal justice system. This paper considers situations where alternative trial processes should be referred back to the criminal justice system and what should happen to material disclosed during the alternative process if referral occurs. If restorative processes are to be used as a complete alternative to the criminal justice system, there must a “public safety override” which prioritises public safety over victim autonomy. This override will be applied by restorative justice providers, who will have the ability to refer cases back to the criminal justice system. If referral does occur, the content of the restorative proceedings should be privileged, and that privilege should belong to the offender. The fact of the offender’s agreement to participate should also be privileged.</p>

Should the use of an alternative trial process preclude referral back to the criminal justice system? Consideration of one aspect of the Law Commission's proposal for trial process reform in cases of sexual offending

<p>In its recent Issues Paper, Alternative Pre-Trial and Trial Processes: Possible Reforms, the New Zealand Law Commission proposed to make available some form of restorative justice process as a complete alternative to the criminal justice system in certain sexual offence cases. It also proposed that where an offender participates in an alternative process in good faith and fulfils all undertakings, the case cannot be referred back to the criminal justice system. This paper considers situations where alternative trial processes should be referred back to the criminal justice system and what should happen to material disclosed during the alternative process if referral occurs. If restorative processes are to be used as a complete alternative to the criminal justice system, there must a “public safety override” which prioritises public safety over victim autonomy. This override will be applied by restorative justice providers, who will have the ability to refer cases back to the criminal justice system. If referral does occur, the content of the restorative proceedings should be privileged, and that privilege should belong to the offender. The fact of the offender’s agreement to participate should also be privileged.</p>

Sexual assault and fatal violence against women during the Irish War of Independence, 1919–1921: Kate Maher’s murder in context

At the height of the Irish War of Independence, 1919–1921, 45-year-old Kate Maher was brutally raped. She subsequently died of terrible wounds, almost certainly inflicted by drunken British soldiers. This article discusses her inadequately investigated case in the wider context of fatal violence against women and girls during years of major political instability. Ordinarily her violent death would have been subject to a coroner’s court inquiry and rigorous police investigation, but in 1920, civil inquests in much of Ireland were replaced by military courts of inquiry. With the exception of medical issues, where doctors adhered to their ethical responsibility to provide clear and concise evidence on injuries, wounds and cause of death, courts of inquiry were cursory affairs in which Crown forces effectively investigated and exonerated themselves. This article adopts a microhistory approach to Maher’s case to compare how civilian and military systems differed in their treatments of female fatalities. Despite the fact that the medical evidence unequivocally showed that the attack was of a very violent sexual nature, the two soldiers directly implicated were not charged with rape or any other sexual offence. In her case, and in those of other women who died violently while in the company of soldiers and policemen, prosecutions of the men involved resulted in acquittal by military court martial. This was so both for women portrayed as of immoral character and for others assumed to be ‘respectable’. It also reflects on the wider question of sexual violence during the Irish War of Independence, concluding that while females experienced a range of gender-determined threats and actions such as armed raids on their homes, the ‘bobbing’ of hair and other means of ‘shaming’, rape, accepted as the most serious act of sexual assault, was regarded by all combatants as beyond the pale.

Balancing Political and Criminogenic Needs: Evaluating the New Zealand Department of Corrections’ Response to Men Assessed With a Below Average Risk for Sexual Recidivism

Current research provides little evidence for the effectiveness of treatment in reducing sexual offence recidivism amongst low-risk populations. However, in real-world correctional settings, program delivery rarely occurs in a vacuum, treatment may be politically mandated and unidimensional measures of program success may preclude recognition of broader benefits. The current study investigated the effectiveness of a low-intensity treatment program, both in terms of participants’ recidivism outcomes and in terms of broader organizational/systems impacts. The results demonstrated low base rate recidivism across both program participants ( n = 311) and a comparison group of men who were assessed as demonstrating similar static sexual offence recidivism risk ( n = 391), and little evidence of reduced recidivism following treatment. However, program administration led to many potential participants being identified as demonstrating higher levels of dynamic risk and overridden to more intensive treatment options ( n = 101). Given evidence that such options do effectively reduce recidivism in higher risk populations, these findings may suggest an overall positive net effect.

Criminal Profiling: Framing of Charges Upon Sexual Offences

In criminal profiling in cases involving sexual offences, the charges must be drafted with a great degree of precision. Every sexual offence has its individual elements that need to be fulfilled before a charge is preferred. There are instances where the defects in charges are rendered to be fatal to the prosecution&rsquo;s case and instances where Section 422 comes to aid and cures the irregularities in the charge. The objective of this research is to identify the common features that render a charge defective in cases related to sexual offences, the effect of the defects. It also aims to analyse the courts&rsquo; approach to determine whether the particular defect is fatal or curable and suggest solutions in handling defective charges to achieve the ultimate purpose of ensuring that justice is served and eliminating any prejudice towards the victim accused. Generally, charges for sexual offences are rendered defective when the charge fails to specify the kind of act which constitutes the alleged sexual act and the related provision. In order to achieve the objectives of this research, qualitative research was conducted through library research, case studies and data analysis. The possible solutions to handle a defective charge would be to determine whether a particular defect in itself would cause a miscarriage of justice by misleading an accused and stripping off the rights of the accused to defend himself. Since the purpose of a charge is mainly to notify the accused, as long as the defect in the charge did not mislead the accused in defending himself, the defects are considered mere irregularities.