New Zealand Considers Banning “Good Character” References in Sentencing for Sexual Offenders
A proposed legal reform in New Zealand, aiming to prevent judges from considering “good character” references when sentencing individuals convicted of sexual offences, is sparking significant debate within the country’s criminal justice system. While seemingly a niche legal adjustment, the National Party’s pledge to implement this policy if re-elected addresses a persistent issue that has recently gained considerable public attention.
In the courtroom, character references are conventionally employed to demonstrate a defendant’s lack of prior history with similar criminal activity. Defence lawyers often highlight the absence of previous convictions and present letters from associates, employers, or community figures, which describe the alleged offence as being out of character for the accused. Such evidence can be formally introduced by defendants who have either been convicted of, or plead guilty to, sexual offences. This is done in an attempt to secure a reduced sentence, alongside other discretionary discounts that judges are empowered to apply under the Sentencing Act.
The National Party contends that their proposed reform, which is also supported by a separate petition and ongoing campaign, would lead to more stringent sentencing outcomes and prevent offenders from gaining an undue advantage based on their personal reputation or social standing. However, some legal professionals, particularly defence lawyers, argue that judges already exercise caution when evaluating such evidence in serious sexual offending cases. They caution that completely removing this avenue could potentially infringe upon the fundamental principle that courts should consider all pertinent circumstances during the sentencing process. Regardless of the differing viewpoints, this potential change represents a significant shift in judicial practice. Furthermore, the discussion inherently raises broader questions about the existing sentencing framework in New Zealand, particularly concerning the extent of judicial discretion currently afforded.
The Perils of “Good Character” Mitigation
As highlighted by Justice Minister Paul Goldsmith when announcing the proposed policy change, “good character” references are frequently used to argue that the offending behaviour was an isolated incident rather than indicative of a pattern. In cases involving sexual violence, this often involves professionals, family members, or respected community figures painting a picture of the defendant as an otherwise upright individual who made a singular error in judgment.
The application of this reasoning is particularly problematic in rape cases. Presenting evidence of a defendant’s perceived good character can inadvertently perpetuate the damaging myth that there exists a clear distinction between a “true rapist” and someone who has simply committed an act of rape. This framing risks trivialising the profound seriousness of sexual violence and obscures the stark reality that the majority of rapes are perpetrated by individuals known to the victim, often occurring in private settings and with minimal or no overt physical force.
Another significant concern is the deeply retraumatising effect such evidence can have on victims. They may be compelled to witness the sentencing judge consider, and sometimes even give credence to, assertions that the assault was less severe, or perhaps even a misunderstanding. If the policy choice is starkly between continuing to allow prior “good character” to serve as a mitigating factor in sexual violence cases or abolishing it altogether, the latter appears to be the more rational and just decision. Nevertheless, removing this single mitigating factor from the Sentencing Act, at least as it pertains to sexual offences, still leaves numerous other aspects of the legislation requiring attention.
The Case for Comprehensive Sentencing Reform
In a related development, an advisory group has been established to incorporate lived experiences and leadership expertise into government decision-making processes concerning the prevention of family and sexual violence. While this represents a crucial step forward, international experience suggests that New Zealand could significantly enhance its sentencing system through more extensive reforms.
Globally, numerous jurisdictions, including the United States, the United Kingdom, Canada, and many Australian states, employ sentencing commissions to develop formal sentencing guidelines. These bodies harness the expertise of professionals in criminology, psychology, statistics, and criminal law to meticulously analyse research and sentencing data. Their work culminates in the production of guidance that outlines how different offences and offenders should be sentenced.
The resulting guidelines serve to:
- Reduce Disparities: They help to eliminate inconsistencies in sentencing across various offences, offender profiles, judicial officers, and geographical locations.
- Enhance Transparency: They promote openness and clarity in sentencing policy.
- Promote Evidence-Based Practices: They tend to rely more heavily on empirical evidence and risk-based assessments rather than broad, often ambiguous factors that have evolved organically through judicial precedent.
In stark contrast, New Zealand’s Sentencing Act, now two decades old, appears increasingly outdated. The aggravating and mitigating factors referenced within the legislation are frequently intuitive, vaguely defined, and morally framed, rather than being clearly articulated or grounded in robust empirical evidence. Crucially, they offer little concrete guidance on how judges should apply these factors consistently across cases involving varying degrees of harm, premeditation, or remorse exhibited by the offender.
The consequence of granting judges such a high degree of unguided discretion is the potential for implicit biases – which are inherent in all individuals – to unduly influence sentencing decisions. This can lead to subjective assessments of an offender’s perceived dangerousness, remorse, or respectability dictating sentencing outcomes, rather than consistent, evidence-based evaluations of harm, proportionality, and the risk posed to public safety.
Therefore, while the removal of “good character” mitigation in sexual violence cases may be a worthwhile endeavour, achieving a truly improved sentencing system in New Zealand necessitates much broader and more fundamental reform.
