What recent law changes mean for survivors
A series of recent law changes, designed to improve experiences of the justice system for family and sexual violence survivors, have come into force over the last six months. We talked to legal expert Dr Paulette Benton-Greig (AUT) to understand more about what changes to laws around stalking and harassment, name suppression, litigation abuse and giving evidence in Family Court will mean.
Overall, Paulette sees these recent changes as demonstrating a promising commitment to reducing the stress and distress of the justice system for survivors. “Hopefully, these changes will shift the system to being safer and more trauma-informed for survivors, but as with all new laws there is likely to be a learning curve,” she says.
Stalking and harassment
In May, stalking and harassment became an offence under the Crimes Act. This means behaviours that could be considered ‘lawful’ such as watching someone or unwanted gift giving, can now be treated as criminal offending if they are part of a pattern of unwanted, persistent behaviour. The offence outlines a list of stalking behaviours including doxxing – releasing people’s personal information online.
Paulette explains moving the offence into the Crimes Act (from the Harassment Act) will lead to greater training and knowledge-building across the criminal justice system. “We should see an increase in understanding in the range of practices that stalking involves and the level of harm and risk, including fatality risks. We might also see an increase in tools for assessing risk which could potentially save lives.”
She is particularly pleased to see that the definition of stalking has been increased to take account of online behaviour. “The capacity for surveillance has vastly increased in the digital era and there is a lot of education needed on these risks and how they are part of wider patterns of coercive control and intimate partner violence cases,” she says.
Name suppression legislation
The introduction of the Victims of Sexual Violence (Strengthening Legal Protection) Legislation last October, widened automatic name suppression so that it includes all sex crimes, including non-consensual intimate visual recordings. It also gives survivors the right to consent, or not, to permanent name suppression for convicted offenders.
Paulette says the legislation has simplified the process for survivors who want to speak publicly about their experiences and has lifted some of the burden on survivors within the system. “It places responsibilities on people within the justice system to ask and check with survivors about their preferences at various points. This is a proactive step towards recognising that the shame of sexual violence doesn’t rest upon survivors.”
She warns that the legislation around name suppression remains complex and can involve the courts balancing a range of considerations. For instance, in cases of offenders with multiple victims, the consent of all victims must be sought, and in some cases name suppression may be continued if an offender is facing future charges.
Litigation abuse
The Victims of Family Violence (Strengthening Legal Protections) Legislation has introduced new measures to protect survivors from litigation abuse, where legal systems are used to harass, control or maintain unwanted contact. Introduced in February, courts can now make orders against people found to have used litigation abuse, meaning that they can only undertake new or existing legal actions with the court’s approval. These orders will generally apply for up to three years but can be extended to five years.
While supportive that this legislation recognises the real and serious harm caused by litigation abuse, Paulette echoes concerns from the Backbone Collective that the law as it stands, could end up being weaponised against survivors. “I worry that there aren’t enough safeguards to ensure it doesn’t end up potentially becoming another tool for abusers. If used against a victim, they have no capacity to put that right because they’ve lost recourse to the courts for three years, which is quite substantial.”
Witness evidence in Family Court
The introduction of the Evidence (Giving Family Violence Evidence in Family Court Proceedings) Amendment Act means that family violence witnesses can choose to give evidence via closed circuit TV, an audio/visual link or from behind a screen. Written notice has to be provided to the court ahead of time, with judges making the final decision on how evidence will be delivered.
Paulette is pleased that these protections have been extended to family violence victims. “The Family Court was designed as a low-formality environment, but in a situation of coercion, low-formality can impact on whether a witness is intimidated by the presence of an abuse,” she explains. She says the true test of whether these measures prevent intimidation of witnesses and support emotional safety, will be in how consistently these options are implemented.
Read Te Pai Ora SSPA's submission on stalking and harassment.
Report highlights opportunities for more legal protections
The Helen Clark Foundation released a report late last year, Addressing Sexual Violence in Aotearoa, which highlighted gaps in New Zealand’s sexual violence laws and policies, and made recommendations for further legal changes. Co-author Sarah Bell explains that the report focused on issues where there was the potential for cross-party consensus and a high likelihood of change.
The recommendations focused on four areas: changes to the justice system to reduce underreporting of sexual violence and to increase the number of cases continuing to resolution; addressing harms caused by sexually explicit deepfakes; eradicating the practice of ‘virginity testing’ in Aotearoa and updating the definition of consent.
On the final recommendation, Sarah explains: “The yes means yes message has really permeated educational settings and a lot of social settings, but it hasn’t made it all the way into the law. There’s a loophole there that just needs to be closed.”
There has been some progress on the issue of virginity testing and deep fakes, with members’ bills on both issues being drawn from the ballot.
Alongside legal changes, the report recommends increased education to challenge outdated rape myths that persist in the general public and parts of the criminal justice system.
