Name suppression changes: Concern giving sex offence victims ‘veto’ on decisions could be ‘dangerous’

Feedback included “strong concerns” about the planned law change and a recommendation from the Ministry of Justice not to progress the proposal as it did not help protect victims.

But chief victims adviser to the Government, Ruth Money, said the concerns raised were “offensive” and “disempowering” to victims, adding the best policy came from those with lived experience.

Goldsmith acknowledged the proposal represents a “significant change” but said the Government feels it’s “justified”.

Concerns raised in feedback and briefings to Goldsmith include:

• Victims could be put under more stress and pressure because of the gravity of the decision, and may carry the burden if extreme harm befalls the offender or a third party due to their decision.

• Victims could be exposed to influence and negative repercussions from family members, particularly if they are under 18.

• The proposal requires agreement from a layperson who does not have access to all the relevant information, including counsel submissions and psychological reports.

• The change risks undermining the integrity of the justice system, which is based on having impartial parties make decisions.

• The right to appeal name suppression decisions would effectively be removed.

• As the victim’s power is tied to whether the defendant is convicted, there may be more defendants maintaining not guilty pleas or seeking discharges without conviction.

• Discharge without conviction applications may be more likely to succeed if the court finds the risk of extreme harm to a defendant or someone connected to them is out of proportion to the offending.

• The defendant’s or other parties’ right to life could be impacted if publication were likely to create a high suicide risk or other risk to their physical safety.

• Defendants might start indicating guilty pleas only if victims supported name suppression, which could be a “tempting” option to prevent victims having to give evidence at trial.

• There is no bottom age limit on when victims would be consulted, meaning children could be given the decision power despite not truly understanding the consequences.

‘The legitimacy of the criminal justice system depends on this’

In June last year, a panel of Ministry of Justice staff provided a briefing to Goldsmith saying they recommended against progressing the law change “as it would not contribute to protecting victims”.

They sought views from then-chief victims advisor Dr Kim McGregor, Crown Law, the Public Defence Service (PDS), the Law Society, Office of the Chief Justice, and the president of the Court of Appeal.

McGregor indicated her support but the others “raised strong concerns”.

PDS said the proposal was “not workable” and that “no solution that took the decision away from an impartial judge would be appropriate”.

The Law Society’s feedback noted it was not clear how “an effective right of veto, rather than consideration and balancing of victims’ views, would reduce re-traumatisation . . . the complexity of trauma within the criminal justice process is such that this should not be a presumed benefit”.

“A victim is, rightfully, emotionally invested in the outcome of a decision involving the defendant. However, criminal law must be administered objectively and fairly. The legitimacy of the criminal justice system depends on this.”

The ministry then provided recommendations that the law change be amended so the court could retain its decision-making power in certain cases, including when a third party could be detrimentally affected or when there were “exceptional circumstances”, such as a high suicide risk.

The recommendations, which may have risked cancelling out the effect of the law change, were not included in the draft bill, aside from one stating the court would make the decision if the victim was unable or unwilling to engage.

The decision not to retain the court’s discretion in some cases was disappointing, convener of the Law Society’s criminal law committee, Chris Macklin, told NZME.

“It’s disappointing, and it risks being quite dangerous,” he said.

“To effectively give one interested party in the proceeding almost a right of veto is slightly more concerning than what people would think,” he said.

Macklin, an ex-senior Crown prosecutor, said he had worked with survivors of sexual assault for “many, many years” and was well aware the court process was “incredibly bruising” for them.

The Law Society was supportive of moves to give victims a voice and hopefully reduce some of the negative effects of the court process, but giving them “all of that power” and the “immense responsibility” that came with it was of “pretty big concern”, he said.

“People shouldn’t be able to get suppression unfairly, but swinging entirely this way . . . [would be] undermining some pretty big and fundamental principles of the justice system and risks undermining the integrity of that system.”

Macklin said it could also risk unintended harm to victims, and other victims connected to the offender, some of whom are children.

He said giving survivors a voice was “laudable”, but “there’s a difference between being heard and deciding outcomes, and this swings the wrong way”.

Criticism ‘offensive’ and ‘disempowering’ to victim-survivors

Ruth Money said the concerns raised in the briefings did not come from a trauma-informed or victim-centric position.

Every survivor should have agency over their ability or could be supported to make the right decision for themselves, she said.

“I find it offensive on behalf of all the victim-survivors when I hear officials and defence lawyers making submissions like that.

“I think people saying that need to take a long, hard look at themselves. I really think it is disrespectful of someone who has endured a lot, who has been brave enough to speak up.”

Just because a victim had been raped didn’t mean they could not make a rational and strategic decision, and to suggest they couldn’t was disempowering, she said.

“I get it, I have worked personally on cases where the offender may have children, may have a slightly unusual name . . . that’s a consideration the victim survivor actually thinks about,” Money said.

“The victim-survivors that I have worked with, they’re able to make a rational and strategic decision. I have had some people support their offender getting name suppression because of the children, actually.”

Money has spoken to many survivors and encouraged them to participate in the select committee process. “Lived experience is going to make the difference. Lived experience is going to make a better law.”

The survivors she spoke to were “thrilled” about the proposal. “One even cried . . . there were lots of tears from my people who have gone it alone bravely, knowing that if only they could have talked more, if only police could have mentioned a name, they’re pretty sure there would have been other people.”

Victims being “gagged” from talking about their experience due to suppression was wrong, she said.

“Sexual offending is a power dynamic. For your offender to still have control over you via name suppression is particularly abhorrent.”

Goldsmith says govt ‘can make this work’

Goldsmith told NZME the Government was giving the power to those most affected by the crime.

“It’s quite a significant change in the overall approach but we think it’s justified.

“The particular concern was that the victims of these serious sexual offences aren’t able to actually talk about what happened to them if name suppression is granted. Most fundamentally is that they can’t warn others as well.”

He said it was Cabinet’s decision not to include the recommendations, but the bill was still going through the select committee process in which these things would be “thrashed around”.

This was “one powerful way” for the Government to take a “victim-centred approach”.

“There continue to be significant numbers of people that receive permanent name suppression, and we don’t think that’s right and we think it should be for the victim to decide.”

Ministry of Justice data shows 17% of people who were convicted of sex offences in 2023 received permanent name suppression. This equated to 143 suppressed defendants out of 831 convicted offenders.

Goldsmith noted issues had been raised while the bill was being drafted, “but we believe we can make this work”.

When asked whether victims had the relevant information to make a complex decision involving many factors, Goldsmith said that had been raised, but “ultimately the victim is the one who’s most affected by the crime”.

Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.

Sophie Trigger is a Senior Political Reporter for Newstalk ZB based in the gallery in Wellington.