Institución educativa El Instituto La Paz de Puebla A.C.

The search for ways to improve the criminal justice system so that it can better respond to sexual offences continues across many jurisdictions. Among the jurisdictions that have progressed alternative processes are Canada, Victoria, Western Australia and New Zealand. For example, in 2000, the Law

Commission of Canada published a report that reviewed the criminal justice system and alternative processes. The report noted (p. 1 report and p. 3

executive summary) that survivors of sexual abuse have a broad range of needs, including:

• an acknowledgment of the harm done and accountability for that harm • an apology

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• financial compensation

• commitment to raising public awareness to prevent recurrence of their experiences.

The Canadian report also indicated that the prosecution of an offence can itself re-traumatise. As complainants in the criminal justice system are merely witnesses, they do not control any aspect of it and may not be kept fully informed of its progress and consequences. The criminal justice system can only meet a limited range of victims’ needs since it is characterised by a formal structure and adversarial nature that does not promote acknowledgment, apology or reconciliation.

The Canadian report observed that if alternati ves to the criminal justice system are to respond effectively to the needs of victims, they must first respect and engage victims to the fullest extent. Secondly, victims must be given access to information and support so that they can make informed choices about how to deal with their experiences. Thirdly, any process by w hich sexual offences can be dealt with should be fair, fiscally responsible and acceptable to the public. The report goes on to analyse the different legal responses to sexual offences such as inquiries by ombudsman offices, children’s commissions, public

inquiries, truth commissions, community initiatives and redress programs run by children’s institutions.

Specialised courts

Some jurisdictions have established, or are considering establishing, specialised courts to deal with sexual offences. Submissions were made to the Inquiry supporting this concept. A recent report by the NSW Standing Committee on Law and Justice (2002) evaluated options to change the process of prosecutions for child sexual assault in New South Wales and recommended that a specialist jurisdiction be established within the existing Local and District Court structure to deal with child sexual assault matters. As a result of that recommendation, a pilot project to trial a new specialist jurisdiction is currently under way in Parr amatta and an evaluation of its effectiveness has been implemented (Rodger 2003). The court includes the following features:

• judicial officers and counsel are disrobed and receive specialist training in issues relevant to child development and sexual assault

• there is a presumption in favour of using pre-recorded evidence and electronic facilities such as CCTV

• a centralised videoconferencing facility where the child gives evidence is linked to the relevant court where proceedings are being held

• appropriate child-friendly facilities are available.

The Australian National Child Sexual Assault Reform Committee has also proposed in its draft report (Cossins unpub.) that a child sexual offences court be established in each Australian jurisdiction on the grounds that specialist courts have been found to reduce disposition times and stay rates, increase the numbers of cases going to trial and proceeding to sentencing, increase

conviction rates and guilty plea rates and to reduce complainants’ experiences of secondary trauma.

The Committee suggests that the recommended features of a specialist c hild sexual offences court should include:

• specialist judges and prosecutors who are trained in child development issues

• use of court-appointed and trained intermediaries to conduct cross-

examination on behalf of the defence in order to eliminate contact between defence counsel and the complainant and, hence, opportunities for

intimidation and harassment • adversarial trials

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• specific assignment of child sexual abuse cases to the court • legal representation for child complainants during the trial • abolition of committal hearings

• victimless prosecution in cases where the child is too young or otherwise incapable of giving evidence

• remote room that is located outside the court precinct and equipped with state-of-the art CCTV facilities, a waiting room and play area

• mandatory use of CCTV for complainant’s evidence in chief and cross- examination in accordance with section 106N, Evidence Act 1906 (WA) unless the complainant chooses to give evidence in court

• legislation that permits the pre-recording of a child’s evidence (s. 106I,

Evidence Act 1906 [WA]) and cross-examination

• an ongoing training program for prosecutors, including support services to enable opportunities for debriefing to prevent burnout and high staff turnover • child witness service to prepare the child and provide pre- and post-

counselling to be staffed by personnel trained in child sexual abuse matters • appropriate policy guidelines for pre-consultations with complainants, in

particular the content of material that should be communicated to the child for the purposes of court preparation

• alternative models for punishment of offenders such as diversion of the offender (from the criminal justice system) into treatment versus conviction plus mandatory attendance at treatment program

• attachment of a trial mediation program to the specialist court for historical abuse cases with strict protocols for the screening of appropriate cases and an in-built evaluation program to assess its effectiveness: the program would be available in those cases where the complainant in an historical abuse case makes a voluntary choice to participate; voluntary participation by the accused would also be required and may need to be offered as an

alternative to sentencing, possibly in combination with a diversionary treatment program.

In the United States, a specialised court for dealing with sexual offence cases was established in Florida 2001.

Separate representation for complainants

As indicated above, there have also been moves towards providing separate representation for complainants in sexual offence matters in several

jurisdictions. In Ireland, for example, recent legislation gives adult complainants in very serious sexual offence cases a right to separate legal representation in certain circumstances.86

In its Sexual Offences: L aw and Procedur e Discussion Paper (2001), the Victorian Law Reform Commission outlines current considerations regarding separate representation for complainants by lawyers. It states that separate representation may assist with the conduct of the investigation and the trial, communication with police and prosecutors, and make witnesses feel more part of the process rather than merely observers. A contrary view is that separate representation would result in higher costs, longer trials and could have the potential to undermine the prosecution case and jeopardise the accused’s right to a fair trial (Victorian Law Reform Commission 1991; 2001). The recent comments by Jerrard JA of the Queensland Court of Appeal, referred to above, also emphasise the advantages of procedures in the Family Court when sexual abuse is an issue, as those procedures allow for children to be separately represented (Rv. D 2002, QCA 445, p. 44).

Conferencing

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of legal alternatives such as conferencing and other ‘restorative justice’ and ‘therapeutic jurisprudence’ processes that may contribute to a more appropriate range of potential responses to sexual offending.