‘Old Law, New Law’ episode 9: The justice system and sexual offences – recommendations for change (Transcript)

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NICK: Welcome to another episode of  ‘Old Law, New Law’, a podcast by the Victorian Law Reform Commission. I’m Nick Gadd.

GEMMA: And I’m Gemma Walsh.  The VLRC recently published a major report that makes 91 recommendations about how to reform the ways sexual offences are dealt with in Victoria. Today we’re talking to the Chair of the VLRC, the Honourable Tony North QC, and the team leader of the inquiry, Jacinth Pathmanathan.

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GEMMA: Tony, what was one of the key findings early on in this project that really influenced the inquiry?

TONY: Firstly we heard that one in five women experience sexual assault in their lifetime after the age of 15. Then we heard that about 85-90 per cent of those incidents are not reported to police. So of course one of the questions we started to ask was, Why is that? Can that be addressed? The next thing is of those that are reported, where women mainly go to the police, what percentage go on to prosecution? We found that there was a relatively low rate, 30 per cent. Of those that are prosecuted, what we found was that about 80 per cent ended up in a conviction. Now most of them were guilty pleas. But of those that went to trial, 50 per cent ended up in convictions. That is lower than the general rate of conviction in the scheme of criminal prosecutions, which is around 70 per cent, so we asked, Why is that? We also heard from victims about the experience of each of those points and the experience particularly in the trial process of how harrowing it is to tell your story, in public, and have it pulled apart minutely, to have your story questioned, to be disbelieved, to be in a very hostile unfriendly environment.

GEMMA: So Jacinth, let’s turn to the subject of criminal trials, which of course will continue to be a very important part of the system. Can you tell us about what new reforms are on the table this time?

JACINTH: Based on a transcript analysis that we did of County Court rape trials, it does seem that good practice is still patchy and more could be done. So in terms of cross-examination our main recommendation is basically for the prosecutors, defence counsel and judges in every sex offence trial to have a discussion about the respectful treatment of the complainant at trial, in general but also in relation to cross-examination. So this discussion we anticipate can cover the nature and style of cross-examination, what can be done in a very practical way  to create a respectful environment,    for example scheduling in breaks, having time limits on questions, making sure that the lines of questioning are relevant to the case. We think that by having these clear expectations at the start,  that’s more likely to encourage positive courtroom culture when the trial actually unfolds.

GEMMA: So the discussion you’re talking about happens before each sexual offence trial?

JACINTH: Well yes it’s fairly flexible in terms of when it happens but it definitely happens before the cross-examination.

GEMMA: OK. And I did read one recommendation about how everybody who works in criminal trials being a specialist. Is that something also that you want to talk about?

JACINTH: We think that everyone who works in the justice system needs to be a specialist when it comes to sexual offences, and this really comes from this idea that we want to drive cultural change in the system, and we want the people who work within it to have the right knowledge and skills. At the end of the day, police, lawyers, judges – they’re the ones interacting with victim survivors on a day to day basis, they’re making decisions on whether cases go ahead or not, they shape the narrative that features in the trial, the power to change the system is very much in their hands. And we make a few suggestions on how we think we can improve knowledge and skills, and how to stimulate this cultural change, and we see education and training as a major vehicle for that, because that’s essentially how you communicate the change, and reinforce it in the system. So we’ve suggested that lawyers are accredited to appear in sexual offence cases, but this should also be accompanied for counsel with increased fees. So this basically acknowledges that the work is complex and we need to attract the best people. And we also don’t want to lose lawyers because of the education requirement seems too onerous, so what we’ve recommended is the fee increase, so you could really see it more as a carrot than a stick approach to ensuring accreditation. We’ve also recommended that all judicial officers in the Magistrates’ Court, County Court and the Victorian Court of Appeal who sit on criminal cases should also complete education and training. Collectively this is what will ultimately we think create a specialist workforce in sexual offences.

GEMMA: How has the VLRC addressed some of the misconceptions in the courtroom around rape trials?

TONY: One problem that we found is that there are misconceptions around the offence of rape in the community and in the legal profession. So when a jury is considering a sexual offence case it is important that those misconceptions don’t flow into their consideration. At the moment there is an Act of Parliament called the Jury Directions Act which sets out a number of things which judges have to tell the jury, or which counsel can ask the judge to tell the jury, to counter these misconceptions. Now our suggestion is to build on the directions that are already required, to add to them some more to fill in some of the gaps about rape misconceptions. For instance, there should be a direction which says that flirtatious behaviour or the dress of the victim doesn’t necessarily denote consent to intercourse. There should be a direction relating to the absence of emotion in victim survivors when giving evidence or when reporting the incident, because it is a myth to think that because there is an absence of emotion, that the story is not true. We suggested an additional jury direction relating to the appearance of  the victim survivor, so an emphasis on clothing, suggestions that the use of drugs or alcohol or being present at particular seedy venues denotes consent to intercourse again is a myth.  And a really important one is what occurs quite often where the victim survivor maintains a relationship after the attack, and a direction which counters the myth that maintaining a relationship means that either it didn’t happen or it was by consent.   We also recommended that the judges   explain the meaning of the concept of ‘beyond reasonable doubt’.  At the moment they’re not permitted to do so as a result of judgements of the High Court of Australia.

NICK: That would apply to all criminal cases though Tony wouldn’t it, not just sexual offences?

TONY: That’s true, our remit was limited to sex offences, and whether that recommendation should be extended more broadly is another and wider question which we didn’t consider. But it has particular importance in a sexual offence trial because of the nature of the evidence that is ordinarily given, namely that it is one word against another word. Whereas in other trials you’ve got a lot more to work with. You’ve got more witnesses, and so the application of beyond reasonable doubt is not so problematical.

GEMMA: So looking beyond the criminal justice system, the VLRC also recommended restorative justice as an alternative to criminal trials in some cases. Tony, perhaps you could give us some background to this recommendation?

TONY: Our interest in restorative justice came from the fact that we early recognised that not every victim survivor was interested in going through the trial process. Justice is different for different people, and sometimes victim survivors want other outcomes than the conviction. That’s how we got to consider restorative justice,  because it’s a system where perpetrators and victims can, if they’re willing – and I stress it’s a voluntary process – get  together and seek to repair the damage that’s done  by the experience.  

GEMMA: Would that work in many sexual assault cases?

TONY: Restorative justice is always going to be limited in value to a very few cases, because in very many cases of sexual assault there will be nothing worse for a victim survivor than to be in the same room as the perpetrator. However I’ve always said, if the process of restorative justice can help say five, six victim survivors in a year then it’s a worthwhile enterprise. And what we heard was that where  perpetrators and victims do sit down voluntarily   with all the protections that we have recommended in the system,  the experience can be transformative. There is one outstanding example in our report which I think captures exactly the value of restorative justice, and a woman who was raped, her offender was convicted, he was in jail,  she wanted to eyeball him and understand how he felt, how he could have done what he did and wrecked her life.  And she said this at the end of that encounter with him in jail: ‘The experience of restorative justice changed the reaction I have when I think of the violence of that night all those years ago.  When I think back now I am automatically catapulted into my restorative justice meeting with him.  This is a dynamic that I never could have imagined occurring. Before this meeting, the memories I had equalled emotional pain, a strong feeling of disempowerment, fear, dehumanisation  and an intense hatred for the offender. But now, when I think back to that night, the memories of it generate a strong feeling of empowerment, fulfilment and compassion for this man. I know that for me, no amount of therapy could ever have achieved that.’

GEMMA: So when it does work, it’s pretty powerful.

NICK: Are there some cases though Tony where restorative justice would definitely not be appropriate?

TONY: Certainly Nick there will be cases where it’s inappropriate. You could hardly imagine for instance a child victim of prelate sexual abuse ever wanting to sit down, or it being appropriate to sit down in the same room – I guess it could happen but it would be extremely rare. The essence of our recommendation is that the system of restorative justice has to be voluntary and it has to be guarded by a whole lot of safeguards so that the participants are prepared. If it works, as we’ve seen it does work in some cases, then it should be available to victim survivors as an alternative, as one way of healing the trauma of this experience.

GEMMA: One of the VLRC’s big ideas is that victim advocates should be part of the criminal justice system.  Can you tell us the thinking behind that?

TONY: I really have to make an important point about what’s likely to change the system. It’s not any one of the sets of recommendations that we make. It’s really the whole system, the intersecting factors. So for instance, unless people are encouraged to report, you won’t get more criminal trials. Unless you have a satisfactory system of restorative justice or alternative remedies you won’t have people using them. So that opens up a whole question of how you can encourage victim survivors to use the system. And we’ve come up with an innovative way of doing that, a system where a person is appointed very early  in the process to walk the journey with the victim survivor. That’s the system of victim advocates.  

GEMMA: Jacinth, how do you see the role of the victim advocate?

JACINTH: I think a message that came out in this inquiry was that for some people,  support is justice in itself. And building on that notion we recommended a model of single  advocates who can provide individual and holistic support throughout a person’s journey, starting from the point where they disclose sexual violence, all the way up to the end of the trial and beyond if they choose to pursue a justice system outcome. It was very much  based on the independent sexual violence advocates that are used in England and Wales, over there it’s been a very successful reform, it’s considered a reform that’s effective and cost-efficient. There the adviser’s role is really broad, it involves advocating for the victim , educating them about their options, liaising with the various services that the victim might come into contact with, so on a given day they might be liaising with police, they might be   dealing with the victim survivor’s housing issues,  they might be having conversations with the victim about what options they might have in front of them, they might even be communicating with their families and trying to mend relationships, especially in situations of intra-familial abuse.  So it’s very much a holistic support and an end-to-end support. And what we’re envisaging is that we already have a model of sexual violence counsellor advocates in Victoria, it’s a very  good model but can be strengthened and enhanced to provide this end-to-end support in Victoria.  

 GEMMA: We’ve already heard that the Victorian Government has already proposed a bill to move to an affirmative consent model, and that’s come out of the VLRC report, hasn’t it. What would change under the VLRC’s recommendation and the new Bill regarding consent and how  would this affect a criminal trial?

TONY: One of the recommendations that government has immediately embraced  is to amend the laws to  incorporate a model of affirmative consent in our rape laws. What that means is that  in order to establish that a rape was committed, the prosecution has to show, amongst other things,  that the accused did not reasonably believe that the victim was consenting. That’s the law as it is at the moment.  Now the law as it is at the moment also says that consent is free agreement, and it gives a whole lot of examples about what’s not consent. If – and I use a woman because that’s the usual situation – if a woman is asleep, if a woman is so affected by alcohol as not being able to consent, then there’s no reasonable belief. What the change will do is in effect require the jury to take into account whether the accused had taken steps to determine whether there was consent. The new provision will require that to establish a reasonable belief in consent, that the accused demonstrate that he had said or done something to ascertain whether the victim had consented. The Attorney-General explained her thinking at the launch, that the effect of the change will be to focus on what the accused said or did, rather than the focus at present on what the victim did. So very often now in trials victims are cross examined extensively about their actions or any indications they gave of consent,  and did not require the accused to answer the simple question, ‘Did you ask? Did you find out whether it was OK?’

GEMMA: Do you think the courts and the legal profession also need to change the way they think about consent?

TONY: The present law is not being administered by judges and lawyers in a way which really reflects that notion of free affirmative consent. We found that that concept, which came in in 2015, has not really entered the bloodstream of trials, and that’s probably because, we think, that the legal profession responds very slowly to changes and to reforms. At the moment, accused are escaping convictions where they’re able to lead evidence that, like in the Lazarus case in New South Wales,  where the victim froze, a very common response to a rape, and the accused says ‘She didn’t run away. She didn’t scream. She didn’t give any indication that she wasn’t loving it.’ So this change in the law is designed to say well, if a woman freezes, and you don’t find out whether there’s an active consent, then it’s rape.

NICK: But criminal trials are still going to come down to a ‘he said, she said’ situation, aren’t they. The accused will say, ‘Yes I did take steps to ensure I had consent’ and the witness will say, ‘No he didn’t.’

TONY: The difficulty for the accused in that situation Nick is that ordinarily at the moment defendants don’t give evidence. And only the complainant gives evidence, and the complainant says, ‘Well I wasn’t asked, I didn’t indicate, I was frozen’ then unless the accused goes into the witness box, he is stuck with evidence that would convict him.

NICK: Do you think that now we’ll see more defence lawyers allowing their clients to go into the witness box?

TONY: It’s hard to say Nick, because there’s such a tradition of keeping accused out of the witness box, it would be a mighty change.

NICK: Jacinth, do you think that one major benefit of this change is really the effect it might have on community awareness and community education and actually changing behaviour?

JACINTH: Yes, its benefits extend beyond the trial. While we’re quite focussed on the trial we very much appreciate that this might have broader societal value in just setting a higher bar for how people engage with each other in sexual interactions, finding out if the other person is consenting to sex. So really I think it’s our hope that it sets the tone beyond the trial and  trickles down to how people behave in the community.

TONY: It became clear from our inquiry that there is a need to change the culture in our community so that sexual assault comes out into the open, victim survivors are listened to and believed,  and practical steps are available to them to respond to their experience,  and that the only way that can happen is by educating children about respectful relationships, the need to ask permission, and for the community generally, who are not children, to get that message. And so we made a number of recommendations about education in schools, and education in the community generally, because ultimately we need to change how society looks at this horrific problem.

GEMMA: The VLRC also recommended criminalising stealthing, which is also in the new Bill. What is stealthing, and how widespread is it?

JACINTH: Stealthing is removing a contraceptive device, or a device to prevent STIs, without consent. Like a condom, removing a condom without consent during sex.  We don’t know how common the behaviour is, but I guess, any stealthing is too much stealthing, which is why we made a recommendation in this area. It’s certainly a harm that is serious, it can cause STIs, unintended pregnancies, and the trauma of having it happen to you is significant. Our recommendation makes it clearer how the law applies to this behaviour. So in a nutshell, we’re saying it’s rape. So when someone consents to sexual activity, that includes whether the other person is wearing a contraceptive device, or a device to prevent an STI. If that person doesn’t stick to the deal, basically the deal that dictates how consent is given, then there’s no consent, and it’s rape.

GEMMA: Image-based abuse is also something that the Commission looked at. Can you tell us what the VLRC recommended in this space, Jacinth?

JACINTH:  Image-based abuse involves sharing and distributing intimate images without consent. Victoria was one of the first states in Australia to make image-based abuse a crime, but the law here has dated slightly since it was introduced and basically needs a bit of a refresh. So we’ve suggested some changes that have been inspired by New South Wales legislation. The one of particular note I think is making these offences indictable crimes triable summarily. That means that they can be tried in a higher court, that police have stronger powers to investigate these offences – basically it takes image-based abuse more seriously. We were conscious of the impact that these recommendations might have on children and young people, they use technology a lot and they may be over-criminalised if we’re not careful, so we’ve also recommended some protections to complement these stronger laws. So for example the prosecution of people under the age of 16 needs approval from the Director of Public Prosecutions first.  

GEMMA: We know that victims of sexual assault are overwhelmingly reluctant   to report the crime. At the moment when a sexual offence occurs, I imagine the first port of call is the police, which can be challenging for many reasons. What is the VLRC recommending to improve the reporting process and, maybe is there good practice elsewhere?

JACINTH: So we very much think that knowledge is power here. People often don’t report because they lack information about what support is available, what their reporting options are, and what will happen in the justice system. We think that demystifying all of this will help them make the decision, and that’s the first step towards reporting, if that’s what they want. So one of our key recommendations is a central website that provides people with practical information on sexual violence and their options on support, on reporting, on what their justice options are.

GEMMA: Just on that, is there evidence, or is there practice elsewhere, of this online reporting – I did see one of the CASAs has recently advertised that they’ve got an online portal.

JACINTH: Yeah so in terms of the website there are some good examples overseas. One example that we really like is Callisto.  It’s a US-based website that’s focussed on campus-based sexual violence, and it clearly sets out the different options that people have, for example talking to an attorney,  reporting the incident, engaging in restorative justice. We think that if we had something similar here, that would be a really good information source for victims. But going to your point on reporting options, reporting options in Victoria are quite limited. At the moment there are only two ways you can report, so you can report  in person or over the phone, and we certainly think that there should be at least an online pathway for reporting to police, and also an online pathway to support. The platform that you asked about, it used to be run by the South Eastern Centre Against Sexual Assault, it doesn’t operate any more, but it does seem like when it was operating it received many disclosures of sexual violence, many people disclosing at night, it definitely gives victim survivors the flexibility to be able to report in their own space, on their own terms …

GEMMA: Where they feel comfortable …

JACINTH: Exactly, where they feel comfortable, and when they feel comfortable as well.

GEMMA: That portal I imagine could offer other information?

JACINTH: Yes, that’s a good question, I think with Callisto it’s very much integrated, so you go to the site and you can get information but you can also take  the first step towards reporting as well. So that certainly is something the government could look into in planning the site. We didn’t endorse any particular platform, I think   that’s something that does need to be worked out, but there are very much good examples out there.

GEMMA: And what about the barriers people may have?

JACINTH: We think that access to reporting is also really important and an area that should be focussed on. So if you’re a child in residential care, if you’re a person in a mental health inpatient unit, if you’re a woman in prison, someone in aged care right now, your access to reporting can be really limited. You might not be able to access a trusted person you can tell, you  might not be believed by staff, or the staff may not know what to do if they’re told. So we do have recommendations that try to drive the work that’s already under way in this space, to ensure that there’s safe spaces to disclose, clear guidelines for staff, and also a good police response if there is a disclosure.

GEMMA: So what has been the government response to the report so far?

TONY: When the Attorney-General, Jaclyn Symes, launched the report on the 12 November, she immediately accepted three of the 91 recommendations and also foreshadowed a $5.2 million package to support sexual assault services. She described the report as providing a roadmap for a ten-year implementation plan.

GEMMA: So that’s a really positive thing for the government to do, and I guess it’s really just up to them now, isn’t it?

TONY: Exactly, yes that’s so Gemma.

NICK: Thank you Tony, and thank you Jacinth. That’s all we have time for now but you can find the report, The Response of the Justice System to Sexual Offences, on the Victorian Law Reform Commission website. Join us again next time for more Old Law, New Law.

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[link to report]

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