Jury trials have been the commonest mode for hearing sexual violence cases in the past 10 years, compared to judge-alone hearings.
But just over half of sexual violation charges don’t reach a hearing, according to Ministry of Justice data released to eBulletin under the Official Information Act 1982.
For those that do, about 47% of the 306 sexual violation charges that resulted in convictions in 2022 came from juries, compared to the less than 1% that arose from judge-alone hearings. However, more than half (52%) didn’t reach trial last year.
The same trends were evident for attempted sexual violation offences: 46% of convictions in 2022 were handed down by juries. Not a single charge 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, the number of jury trials once again 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.
The ministry’s data note not all charges will proceed to trial. Defendants can plead guilty at any point beforehand, thereby doing away with their trial and progressing to sentencing. Alternately, charges can be withdrawn or let lapse before trial.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.
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 past 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.
In the absence of a jury
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 trial model, 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 whom the fact finder 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 the 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 judge-alone 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,” Benton-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.”
To convict or acquit?
The jury versus judge-alone statistics add to a picture of how New Zealand’s criminal justice system responds to court cases of sexual violence.
Based on 10 years of publicly available Ministry of Justice data, New Zealand is more likely to acquit than convict defendants of sexual violation charges that get to completion.
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 charges 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,” she says.
In comparing the rates of conviction and acquittal in England and Wales, juries there are more likely 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.