Defendants who are convicted of sexual violation offences are more likely to have chosen trial by jury than a judge-alone hearing. But just over half of the charges laid in relation to these offences don’t even get to trial, according to Ministry of Justice data released to LawNews under the Official Information Act 1982.
Last year, juries convicted on 47% of the 306 sexual violation charges that were prosecuted, compared to the less than 1% of convictions that arose from judge-alone hearings. However, more than half (52%) didn’t reach a trial hearing in 2022.
The same trends were evident for attempted sexual violation offences: 46% of convictions in 2022 were handed down by juries. No charges resulted in a conviction when adjudicated solely by a judge. But again, more than half (54%) of charges didn’t reach trial to begin with.
For indecent assault charges, jury trials once more exceeded judge-alone hearings: 27% to 4%, respectively. The number that didn’t reach trial, 69%, was the largest among the six types of sexual offences, including incest, objectionable publication, and sexual grooming and child sex tours outside New Zealand.
These figures add more detail to the picture of how New Zealand’s criminal justice system responds to sexual violence court cases. Based on 10 years of publicly available Ministry of Justice statistics, New Zealand is more likely to acquit than convict defendants of sexual violation charges that go to a hearing.
Attrition
The ministry’s jury versus judge-alone data note that not all charges will proceed to trial. Defendants can plead guilty at any point beforehand, thereby doing away with their trial and progressing straight to sentencing. Alternately, charges can be withdrawn or not proceeded with before trial.
Unless a judge-alone trial is ordered because the case is likely to be long and complex or jurors have been intimidated, defendants charged with rape or unlawful sexual connection can elect a trial by jury.
That’s because sexual violation by rape or unlawful sexual connection is a category three offence under the Criminal Procedure Act 2011. Category three offences are generally those punishable by a term of imprisonment of two years or more; sexual violation under s 128B of the Crimes Act 1961 attracts a term of imprisonment not exceeding 20 years.
If the defendant doesn’t choose a jury trial, and the matter proceeds to trial, a judge will preside.
Decreases
When looking across the past 10 years, the number of people convicted by juries for sexual violation charges has dropped 13% to 145.
No person was convicted by a judge on similar charges in 2013. Ten years later, only three were found guilty in judge-alone trials. The number that didn’t reach a trial rose 15% to 158.
For attempted rape and unlawful sexual connection, jury convictions fell 40% to six in 2022, while convictions from judge-alone trials remained unchanged at zero. The charges that didn’t reach trial decreased 46% to seven.
Indecent assault convictions from juries followed a similar pattern over the last 10 years, having dropped by 7% to 99 in 2022.
By contrast, judge-alone convictions rose 700% to 16, from a small baseline of two in 2013. Indecent assault charges that didn’t reach trial dropped more than a quarter (28%) to 252 last year.
Complainant experience
Another, smaller snapshot of contemporary adult rape trials, whether heard by a jury or by a judge, was given last year by Professor Elisabeth McDonald’s research, In the absence of a jury: examining judge-along rape trials.
In exploring calls to change the fact-finder in rape cases, with the purpose of trying to improve the criminal justice experience for complainants of sexual violence, McDonald compared the experience of complainants in eight cases with a judge as fact-finder to that of complainants in 30 jury trials.
Among the findings: the conviction rate for rape in the judge-alone trials was significantly higher (88%) than in the jury trials (40%), despite similar fact patterns and trial issues. However, McDonald noted the difference could be attributed to several factors other than the model of trial, including the admission, in four of the judge-alone trials, of independent evidence such as closed-circuit television footage and witnesses – evidence not often available in adult rape cases.
The law professor concluded that regardless of who the factfinder was in adult rape cases, the constraints of the adversarial trial process remained the same and delivered the same dynamic. The only significant difference was the availability of reasons for verdict and the possibility that judges were better at rejecting rape myths when making a decision.
AUT Law School senior lecturer Paulette Benton-Greig cautions against making any observations from the research, which was explicitly exploring whether changing the fact-finder would help improve complainant experience, not whether a change would increase conviction rates.
“You’ve got to think about who it is that goes for a judgealone trial. It’s much more likely, I suspect, to have been because they had previous convictions, serious violence convictions or sexual convictions. They’ve got perhaps gang affiliations that would be really obvious to juries. They’re already in jail for something else,” Greig says.
“People who think that juries are going to be biased against them are much more inclined, I think, to go for judge-alone trials. So, you might have seen the same kind of outcome in a jury trial. You can’t tell.”
Not proven
Not-proved outcomes (either an acquittal, withdrawal or dismissal) have mostly outweighed convictions when taking each year between 2013 and 2022 separately. Continuing a decade-long trend, 2022 saw 55% of rape charges not proved compared to the 41% that resulted in convictions. The closest gap was in 2017, where 53% were not proved versus 41% convicted while 2020 saw the largest difference (70% not proved to 25% convicted).
While not-proved outcomes for unlawful sexual connection have exceeded convictions for most of the past decade, 2022 was the first year to buck the trend: 50% of charges were convicted compared to the 45% that weren’t proved.
Sitting behind these statistics, however, is the rate of attrition – how often complaints fall away as they progress through the criminal justice system.
And that’s if complaints even enter the system at all: according to Ministry of Justice research, more than 90% of sexual violence is not reported to the police.
The ministry’s attrition research found the number of individual sexual violence offences reported has increased by a fifth since 2017 to nearly 10,000 in 2021. The number of victims has increased by 26% to just shy of 6,600 in 2021. Where reports are made, most instances of sexual violence do not see a court outcome.
The research reveals that in the two years after complaints were reported to the police, 46% resulted in the identification of perpetrators, 42% were prosecuted, 13% were convicted and 8% were imprisoned.
“What we know, when we look at the attrition research, is that the vast majority of sexual assaults never make it to the police,” Benton-Greig says. “If you look at the most recent crime and victim survey, the rate is about 7% of events that could be crimes get reported to police in the first place. And then from there, there’s a big drop off to charging, and then there’s a big drop-off from charging to outcome.
So it’s a bigger picture than just guilty versus not guilty, at the end of the day,
Paulette Benton-Greig
In comparing the rates of conviction and acquittal in England and Wales, juries there are more likely to convict than acquit defendants once rape cases reach the courts – and this has been the case for at least the past 15 years.
That’s according to an analysis by UCL’s Professor Cheryl Thomas of tens of thousands of jury verdicts and millions of charges laid in the Crown Court between 2007 and 2021.
0 Comments