Our terms of reference
1.1 The Victorian Law Reform Commission was asked to recommend ways to improve the justice system’s response to sexual offences.
1.2 We were guided by our terms of reference (see page xvi) given to us by the former Attorney-General, the Hon. Jill Hennessy MP, on 26 March 2020.
1.3 On 26 November 2020, we were asked to also consider if there should be a ‘grab and drag’ offence. We will report on this part of the reference by 15 December 2021.
What we focused on
1.4 Our terms of reference asked us to look at:
• barriers to reporting sexual offences: what prevents people from reporting sexual violence
• why reports of sexual violence may not proceed through the justice system
• how to reduce the trauma of people who have experienced sexual violence, when they engage with the justice system
• the best ways of responding to sexual offences—including alternatives to the justice system
• how to build on previous reforms.
1.5 Improving the justice system’s response to sexual offences has been the subject of ongoing research and reform in Victoria. The Commission previously investigated this area in 2004, in its report, Sexual Offences.
1.6 In this report, we have chosen to focus on areas that will make a major difference:
• making it less difficult to take the first step towards seeking justice—especially for people who face greater barriers to access than others
• having a strong set of justice options for people who have experienced sexual violence
• improving victim survivor experiences of the justice process
• ensuring the justice process is evidence-informed and enables victim survivors to present their best evidence
• having structures to ensure that the justice system responds effectively to sexual violence and keeps improving.
1.7 We highlight issues that have not traditionally been a priority of sexual violence reforms—such as the role of the community to believe and support people who have experienced sexual violence (see Chapter 3). We discuss ways to stop and prevent offending, which considers both accountability and therapeutic interventions (see Chapter 13).
1.8 The focus of our inquiry is responding to sexual violence after it happens. That said, we know how important it is to prevent sexual violence (primary prevention).
1.9 A strong response to sexual violence also requires more than just a strong justice system response. The government will need to consider other systems, such as education and health, if it implements the recommendations in our report.
1.10 The Hon. Anthony North QC was the Commission’s Chair during this inquiry.
1.11 We established a Division to guide and make decisions about the inquiry. All our Commissioners were Division members. Their names are listed on the inside front cover.
1.12 We appointed the Hon. Marcia Neave AO as a special advisor to the inquiry.
What we published
1.13 In mid-October 2020 we published eight issues papers to seek views on how the justice system was working and what could be improved. We invited submissions by 23 December 2020.
1.14 Along with the issues papers, we released a consultation paper and Easy English paper aimed at people who had experienced sexual violence.
Submissions we received
1.15 We received 71 written submissions (see Appendix A). We published the submissions on our website, apart from those that were confidential.
Consultations we held
1.16 We held two stages of consultations. First, we held preliminary meetings with people who worked in the justice system, such as sexual violence counsellors and the courts, to help us understand the main issues and start identifying ideas for reform. We also spoke to academics who had studied this area. Along with our own research, these meetings helped us develop our issues papers.
1.17 Second, after the release of the issues papers, we held formal consultations with a wide range of people, including community and victim advocacy and support organisations, academics, the police, the legal profession and the courts. We met with people who could tell us about innovative justice models in other jurisdictions.
1.18 We held 99 of these consultations and met with some people more than once (see Appendix B). This included women and two men who had experienced sexual violence (or in a case involving an adolescent who had experienced sexual violence, their mother).
1.19 We organised roundtables and meetings on the experience of Aboriginal communities, people with disability, people with lived experience of mental illness or psychological distress, children and young people, people from LGBTIQA+ communities, people who work in the sex industry, people who experienced sex trafficking, people seeking asylum, care leavers and women with contact with the justice system.
1.20 We had hoped to meet with community organisations representing people from migrant backgrounds, older people and men, and were grateful to receive submissions from some of them. We relied on the work of the Royal Commission into Institutional Responses to Child Sexual Abuse to learn about the experiences of victim survivors in institutional contexts.
1.21 Due to coronavirus (COVID-19) restrictions, most of our consultations were online, including with people from regional Victoria, other parts of Australia and overseas. We met with members of organisations based in most of Victoria’s regions this way.
1.22 One of our issues papers was on the experience of people who have committed sexual offences. Many submissions addressed this topic (including one from someone who had been convicted of a sexual offence). We held additional consultations on this topic. We had planned to meet with people who had committed sexual offences, but the process needed to run these meetings well could not be managed in our inquiry’s timeframe.
1.23 We received valuable informal advice and help from many people who work in the area of sexual violence or the justice system more broadly. We are grateful to the people named in Appendix C for contributing to our inquiry.
1.24 We extend our special thanks to all the people who have experienced sexual violence who contributed to our inquiry. We appreciate the thought and care that went into what you told us. We were struck by your strength and resilience. Your ideas and voices are in this report—we expect they will shape changes that will benefit others.
Our broader public engagement on Engage Victoria
1.25 Besides submissions and consultations, people who had experienced sexual violence could tell us their views through an online form, available on the Engage Victoria website from 16 October 2020 to 23 December 2020. We released an animated video to promote the online form.
1.26 The form was anonymous and had 15 questions, including questions about experiences with the justice system and ideas about how to improve it. We received 67 responses we could use.
1.27 We gave people the option to tell us how they identify. Most people identified as female (54 responses), while six identified as male. We received most responses from people identifying as LGBTIQA+ (24 responses) followed by people with disability, people living in a rural or regional community, and people working in the sex industry (10 responses each). We received fewer responses from people identifying as migrants or refugees, Aboriginal or Torres Strait Islander or as an older person.
1.28 A summary on our website sets out the valuable insights we gained from the people who filled in the form. We are grateful to everyone who responded and refer to their views throughout our report.
Other research and data we used
1.29 In addition to our research, submissions and consultations, we received significant and helpful data from the Crime Statistics Agency, the County Court of Victoria, and the Office of Public Prosecutions.
1.30 This data gave us new insight into the justice system’s response to sexual violence—such as court outcomes and the length of cases. We use it throughout our report.
1.31 We commissioned an analysis of transcripts of rape trials in the County Court of Victoria, which is where most rape trials take place (see box). This provided a critical window into the experience of complainants in sexual offence trials and the impact of previous trial reforms.
Transcript analysis of County Court rape trials
Professor Luke McNamara and Dr Julia Quilter prepared a report on transcripts from 25 rape trials in the County Court of Victoria (2013–20). All the trials included evidence of complainant or accused intoxication.
The report sheds light on the experience of complainants, reliance on misconceptions about sexual violence, and the impact of previous reforms. For example, it considered:
• the nature of cross-examination of complainants, and whether the prosecution or judge intervene
• the impact of reforms to the directions judges give juries in trials
• the impact of reforms to the element of ‘consent’ in rape—for example, whether the focus has shifted to the accused and the steps they took to find out if the other person consented.
The study gave us valuable insight into the conduct of rape trials. We refer to this research throughout our report.
Site visits we made
1.32 We gained a practical understanding of how the justice system is working by viewing sexual offence proceedings in the Magistrates’ Court of Victoria and County Court of Victoria. We also visited a multi-disciplinary centre in Wyndham, and a centre against sexual assault (CASA) and Orange Door in Ballarat.
How we made sure our process was ethical
1.33 We developed an ethical governance framework for working with people who have experienced sexual violence. This included:
• prioritising engagement with people who face greater barriers to accessing justice
• when meeting with people who had experienced sexual violence, asking for informed consent to use what they said and making sure they had the support they needed (such as a counsellor)
• training and support for the policy and research team
• including content warnings in our publications.
What was out of scope for us
1.34 Our focus has been on issues that have not been recently reviewed. For example, we recently reviewed committals and the government is already progressing reforms on the law of tendency and coincidence. The Royal Commission into Institutional Responses to Child Sexual Abuse had a strong focus on institutional contexts—we have built on their work, but also focused more on sexual violence outside institutions.
1.35 We also did not focus on issues that are subject to ongoing reviews. For example, in 2020 we made recommendations for reform to enable victim survivors to tell their stories. The law has since changed, and the Victorian Government is consulting further on the issue of identifying deceased victims of sexual offences.
1.36 Our Stalking reference is looking at Personal Safety Intervention Orders closely. While defamation laws can be a barrier to reporting sexual violence to police, this is being considered by a review of model defamation laws. Sentencing, while important, is the subject of ongoing work by the Sentencing Advisory Council.
1.37 We have also prioritised what the Victorian Government can do to improve the justice system’s response to sexual offences. We were told about issues that sit within the Australian Government’s responsibility, such as people feeling that they cannot report sexual violence because of their uncertain visa status. We note these issues in Chapters 2, 4 and 14. Given the Commonwealth controls these areas of law, they are better dealt with in the joint program of work it is leading on sexual violence.
A note on language
1.38 In the box below, we explain some key terms that we use in this report.
1.39 We understand that the best terms to use can change and people often disagree about the right terms to use. For example, we used ‘sexual harm’ in our issues papers to refer to all sexual activity without consent. We thought this term would be recognised by a broader audience, who might not identify what they experienced as ‘violence’. We received feedback that ‘harm’ does not convey how serious sexual assault is, so we use the term ‘sexual violence’ in this report.
Terms used in this report
Sexual offences: A sexual offence is sexual violence that is against the law. Some sexual offences in Victorian law include rape (sexual penetration without consent) and sexual assault (sexual touching without consent). Some sexual offences are non-contact offences, such as a threat to commit a sexual offence.
Sexual violence: We use this term to refer to all sexual activity that happens without consent. It includes violence that is not a sexual offence and violence that is not physical, like sexual harassment. Sometimes we use ‘sexual assault’ instead of ‘sexual violence’ if it is easier to recognise in the context—for example, when referring to sexual assault services. We specify the type of violence, like sexual harassment, where the context needs it.
People who have experienced sexual violence: We mainly refer to ‘people who have experienced sexual violence’. This is to recognise that sexual violence is an experience, rather than who someone is. It also recognises that people who have experienced sexual violence do not have one shared identity. We sometimes refer to people who have experienced sexual violence as ‘victim survivors’ (a term that recognises their resilience as well as their victimisation) or as ‘complainants’ (which is a legal term).
People who have committed a sexual offence: We generally refer to ‘a person who has committed or been convicted of a sexual offence’ rather than ‘sex offenders’. This recognises that sexual offending is a problem of someone’s behaviour, rather than of who they are. This is not meant to downplay the seriousness of sexual offences, which are among the most serious crimes in our community. We use ‘offender’ if it applies in the context—for example, when referring to the Register of Sex Offenders. We also refer to people who have been charged, but not convicted, as ‘the accused’. In other contexts, such as restorative justice, we refer to ‘people who are responsible for sexual violence’.
Our approach to reform
1.40 In developing our recommendations, we were guided by our terms of reference, which define the scope of this inquiry. We also developed key principles for our reforms based on what we know about sexual violence and the justice system, past reforms, and what we know works in responding to sexual violence.
The system needs to be more accessible and flexible
… it can feel like I’d have more chance of winning the lottery than getting someone who avoids victim blaming someone like me.—Victim survivor working in the sex industry
1.41 In this inquiry, we recognise that our community is diverse and so are people’s experiences of sexual violence and seeking justice. Each person who has experienced sexual violence will have different personal and structural factors that impact their experience.
1.42 It is more difficult for some people and groups to access the justice system than others. They might find it harder than others to report their experience. They might find it harder than others to be heard and believed, and to get a just outcome. This might be because they did not realise what happened to them was a crime, or because the justice system has treated them unfairly in the past. It could be because our justice system is still based on the experiences of some groups, but not others.
1.43 Our recommendations aim to make changes to the system that would give everyone access to justice and allow it to respond flexibly to diverse needs and experiences. For example, we recommend:
• that community education is tailored to diverse audiences (Chapter 3)
• that research focuses on hidden forms of sexual violence, especially within some communities or groups (Chapter 6)
• initiatives to ensure that all people, no matter where they live, have good access to reporting sexual violence, including people in prison and out-of-home care (Chapters 4 and 7)
• that Aboriginal communities are supported to co-design restorative justice programs (Chapter 9)
• that victim advocates be introduced, giving priority to those who need them the most, including people with disability and children (Chapter 12)
• that everyone working in the criminal justice system become more specialised so that the system is able to respond better to diverse needs and experiences (Chapter 18).
1.44 We have reflected these diverse needs and experiences throughout our report because we believe that an effective justice response to sexual violence must address the needs of everyone in the community. That said, Chapters 8 and 15 focus especially on pathways and supports for people with diverse needs and experiences.
The justice gap is real
1.45 Our terms of reference ask us to look at ways to address the attrition of reports of sexual violence in the justice system.
What is attrition?
Attrition studies follow the progress of cases through the stages of the justice system. Attrition refers to the drop off in cases from the time they were reported to police. For example, a report to police might not result in charges being laid or a prosecution may not go to trial or lead to a conviction. Attrition studies may also look at the reasons cases drop off.
As a review from England and Wales noted, attrition can occur because the complainant decides not to continue with the case, there is not enough evidence to prosecute, or the suspect is acquitted in court.
The Crime Statistics Agency conducted an attrition study for our inquiry. The study looked at sexual offence incidents recorded by police from July 2015 to June 2017. It analysed the factors that made incidents more or less likely to progress through the system. We discuss this in more detail in Chapter 6.
The study found that charges were laid for one quarter of all incidents recorded by police. There is little attrition at the prosecution stage—90 per cent of incidents where police laid charges were heard in court. Two-thirds of incidents with charges finalised in court were proved (either from a guilty plea or a conviction after trial or contested hearing).
1.46 The attrition rate highlights what researchers call the ‘justice gap’ for sexual violence—the gap between the number of offences reported to the police and the convictions that result. It is helpful in highlighting how difficult it is to get a conviction from the criminal justice system. We agree that this drop off occurs.
The attrition rate is one part of the picture
1.47 The justice gap is real, but a sole focus on reducing the attrition rate is not helpful. While it has been an aim of justice system reform in the past, there are many problems with focusing on reducing attrition on its own.
1.48 For example, it could create the wrong incentives. The conviction rate could be increased by picking cases that fit common misconceptions about sexual violence (where physical force is used, for example). This would create more disadvantage for people who experienced sexual violence who do not fit the stereotype.
1.49 The attrition rate can be a misleading measure that does not highlight where the issues arise. For example, the biggest drop off happens between the police report and the decision to press charges. There are barriers that prevent a report to the police in the first place, as we discuss in Chapter 2. This is an important issue that is not reflected in the attrition rate.
1.50 An aim of reducing attrition, especially by increasing the conviction rate, might compromise important rights such as the right to a fair trial.
1.51 We agree with the literature that addressing the attrition rate should not be a reform aim on its own. Our aim is instead to identify and fix any unfair barriers to reporting and progressing sexual offence cases. As we discuss in Chapter 6, we need to understand why the drop off happens so that we can address these concerns.
1.52 A sole focus on addressing the attrition rate limits attention to the criminal justice system. It is also our aim to address a range of justice needs. We discuss this next.
We need a suite of justice options
Every victim walks a unique path, and no two victims feel the same way about anything.—Witness J
1.53 We know that people’s experiences of sexual violence and seeking justice are diverse (see Chapter 2).
1.54 There is now a body of research on how victim survivors understand justice, what they expect from the justice system, and where they think the justice system has succeeded or failed. The research identifies a range of justice needs: to have information, to participate, to have a voice, to feel validated and vindicated, and for the person responsible to be accountable. We discuss these justice needs in Chapter 2.
1.55 The adversarial justice system has limits. Sexual offences are prosecuted by the state with a limited role for the victim. It is based on testing a complainant’s evidence. The process can be highly traumatic. Moreover, sexual violence is an interpersonal harm that is often committed in private, with no witnesses or physical trace. It can be difficult to prove sexual violence to the criminal law standard of beyond reasonable doubt (see Chapter 19).
1.56 Our inquiry proposes setting up a system where people who have experienced sexual violence are able to choose from a range of justice options. These would satisfy different needs and would be available at different stages of their engagement with the justice system.
1.57 Figure 1 shows the spectrum of justice options that could be available to victim survivors. In this report we focus on restorative justice, truth telling, financial assistance, civil litigation, support and, of course, the criminal justice system.
Figure 1: A suite of justice options that could be available to victim survivors
The experience of the process matters
I think I still would have done it even if he was not convicted. It’s a slow process but if I had my time, I would still do it again.—Lucille
1.58 The justice system still holds great potential to meet the justice needs of people who have experienced sexual violence. People will have many interactions with it when seeking help, reporting and going through the court. Each of these interactions is an opportunity for victim survivors to receive a supportive and validating response.
1.59 Research indicates that when the legal process is fair, victims are more satisfied with it, which can be more important than the outcome of the legal process itself. People are more satisfied if they know they have been listened to, believed and treated with respect. For some victim survivors, this will mean being kept informed of the progress of their case. Others might care more about the quality and accuracy of decisions made, and their ability to challenge them.
1.60 A fair process is also important for the accused. The right of an accused not to be convicted except after a fair trial is a fundamental aspect of the justice system. This includes rights to be presumed innocent until proved guilty, to test evidence, and to have a conviction reviewed by a higher court. These rights are reinforced by the Charter of Human Rights and Responsibilities Act 2006 (Vic). We treat these rights as significant and legitimate.
1.61 Our reforms focus on ensuring fair and supportive processes. We make recommendations to support people who have experienced sexual violence, accused people and others involved in the justice process, like jurors (see Chapter 20).
Other reforms should be built upon
1.62 There have been many reviews of the justice system’s response to sexual offences. These include reports in the United Kingdom, Northern Ireland and New Zealand. In this inquiry we learnt from and built on the work of these reforms.
1.63 For example, we consider work in New South Wales and the Australian Capital Territory to strengthen the offence of rape by requiring a person to have taken steps to find out if the other person consented. We suggest that Victoria take the same approach (see Chapter 14). In Chapter 20 we draw on work by the New South Wales Law Reform Commission and law reform in New Zealand. We recommend more directions to the jury in sexual offence trials to counter misconceptions about sexual offences. In Chapter 12, we recommend introducing victim advocates and legal representation, based on models used or piloted in the United Kingdom.
1.64 We have also been influenced by other reviews that were not directly on sexual violence. For example, family violence reforms have amplified the voices of people with lived experience in the design and delivery of services. We recommend adopting this as common practice in sexual violence reforms in Chapter 4.
1.65 There are many reforms underway which the government will need to consider alongside our recommendations (see Figure 2). We have tried to complement existing reforms. For example, in Chapter 7 we use the work of royal commissions and other inquiries on residential and institutional environments to develop principles for responding to sexual violence in these contexts. In Chapter 4 we recommend a working group to support implementation.
1.66 Key reforms are in train that will provide useful avenues for implementing the recommendations in this report as well. The family violence reforms (see box) are an especially useful avenue. In some of our recommendations we suggest the government implement our recommendations using these reforms.
The family violence reforms
In Chapter 5, we talk about the relationship between family violence and sexual violence. There are clear overlaps as well as differences. Sexual violence cannot be subsumed within family violence reforms because there are many patterns of sexual violence that fall outside family violence.
But there is value in building on family violence reforms. At their core, both family and sexual violence are born out of power structures within our society, and many of the challenges are similar and rooted in the same causes. Many of the people involved in responding to sexual violence will also be involved in responding to family violence.
This will mean that the lessons learned from, and the existing investments in, family violence can be infused into our responses to sexual violence. It will also raise the profile of sexual violence within family violence reforms.
One major avenue for reform that we use in this report is the Family Violence Multi-Agency Risk Assessment and Management Framework (MARAM) framework. The MARAM Framework is a suite of policy, practice tools, training, legislation, regulation and formal reviews that aims to change the practice and culture around responses to family violence.
The framework aims to:
• establish a system-wide shared understanding of family violence
• provide information and resources that professionals need to keep victim survivors safe, and to keep perpetrators in view and hold them accountable for their actions
• guide professionals across the continuum of service responses, across the range of presentations and spectrum of risk.
In Chapter 18 we recommend that the MARAM framework be used to support everyone working in the criminal justice system to specialise in responding to sexual violence.
1.67 Another key reform is the Sexual Assault Strategy being developed by the Victorian Government. As part of its latest rolling action plan on family violence, the government announced it would develop and release a ‘comprehensive sexual assault strategy, informed by victim survivors and in partnership with the sexual assault and family violence sector’.
1.68 This is an opportunity to identify priorities for broader sexual violence reform and deliver changes that will improve responses to sexual violence. In a number of our recommendations, we identify the Sexual Assault Strategy as a potential avenue for implementation.
Figure 2: Broader reform context
Reform needs to be implemented well
1.69 To help our recommendations succeed, we have ensured that they are evidence-informed and we have thought hard about their implementation. The recommendations are possible and practical.
1.70 We have given thought to the sequencing of our recommendations. For example, people should only be encouraged to report if doing so results in the support and justice they need. Informing people about these improvements might also encourage reporting. Therefore, we suggest that many of the criminal justice system reforms be done first (see Chapters 19–21).
1.71 We also believe that measuring the impact of our recommendations is critical. We propose implementation of our recommendations be monitored and evaluated (in Chapters 6 and 22).
The process from here
1.72 Following an extension of our deadline, our report is due to the Attorney-General by 20 September 2021. Within 14 sitting days of receiving our report, the government must put it before the Victorian Parliament.
1.73 It is up to the Victorian Government or the organisations called on to act to decide what they will do in response to our report. We hope that the Victorian Government and these organisations take the opportunity to change the way Victoria responds to sexual violence.
Victorian Law Reform Commission, Sexual Offences (Report No 5, July 2004).
Commonwealth of Australia, Fourth Action Plan—National Plan to Reduce Violence against Women and Their Children 2010–2022 (Policy, 2019) 2 <https://www.dss.gov.au/women-publications-articles-reducing-violence/fourth-action-plan>.
The Commissioners come from varied professional backgrounds. Commissioners are required to declare any potential conflicts of interest where they may intersect with the Commission’s work, including the development of recommendations. It may be appropriate for a Commissioner to recuse themselves from engaging with the decision-making around a particular issue when a potential conflict of interest arises. In this reference, Dan Nicholson, Executive Director, Criminal Law at Victoria Legal Aid, declared potential conflicts of interest and did not engage in decision-making in relation to Recommendations 45, 71 and 72. These recommendations relate to Victoria Legal Aid..
‘Improving the Response of the Justice System to Sexual Offences: Issues Papers’, Victorian Law Reform Commission (Web Page, 5 October 2020) <https://www.lawreform.vic.gov.au/improving-the-response-of-the-justice-system-to-sexual-offences-issues-papers/>.
See, eg, Consultations 12 (Project Restore), 37 (New Zealand District Court judges with experience on the sexual violence court pilot).
See, eg, Consultations 67 (Loddon Mallee Regional Aboriginal Justice Advisory Committee), 17 (Roundtable consultation focused on the experience of women with disability), 66 (Consultation focused on people who have a lived experience of states of mental and emotional distress commonly labelled as ‘mental health challenges’), 22 (First roundtable on the experience of LGBTIQA+ people), 34 (Project Respect Women’s Advisory Group).
See, eg, Submissions 1 (Dr Catherine Barrett), 49 (inTouch Multicultural Centre Against Family Violence).
See, eg, Consultations 20 (Members of Barwon South West RAJAC and Barwon South West Dhelk Dja Action Group), 67 (Loddon Mallee Regional Aboriginal Justice Advisory Committee).
Submission 46 (Name withheld).
Consultations 19 (Dr Frank Lambrick), 39 (Victorian Association for the Care and Resettlement of Offenders and Jesuit Social Services).
There were 77 responses to the form. Of those, only 75 were ‘unique contributors’ (meaning some people submitted the form more than once). Ten people told us that they were not an adult. These people were unable to complete the form, as we had decided it was not ethically appropriate to seek responses from people under 18. They were directed to information about available supports.
Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).
The limitations to the study are detailed in the report, which we will publish alongside this final report. For example, the sample is small and not representative—it only includes a subset of the total number of sexual offence trials in the relevant period that met the study’s criteria, such as evidence of intoxication. It was also difficult to obtain complete transcripts of all parts of the trial, such as the closing addresses of the prosecution and defence. But all the transcripts analysed included the complainant’s cross-examination.
Victorian Law Reform Commission, Committals (Report No 41, March 2020). In response to recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse, the Council of Attorneys-General agreed to implement a Model Bill that would change the test on tendency and coincidence evidence in the Uniform Evidence Law: see generally Council of Attorneys-General, ‘Communiqué’ (Media Release, 29 November 2019) <https://www.ag.gov.au/sites/default/files/2020-03/Council-of-Attorneys-General-communique-November-2019.pdf>.
Victorian Law Reform Commission, Contempt of Court (Report No 40, February 2020) Recommendations 100, 103–5.
Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic). The law made it a crime to share information that can identify a victim survivor of a sexual offence. It has since changed to define more clearly when people can consent to be identified. It is now easier for victim survivors to speak about what happened to them if they want to.
Department of Justice and Community Safety Victoria, ‘Making It Easier for Victim-Survivors of Sexual Offences to Tell Their Stories’, Victorian Government (Web Page, 25 June 2021) <https://www.justice.vic.gov.au/victim-survivor-stories>.
Department of Justice (NSW), Review of Model Defamation Provisions—Stage 2 (Discussion Paper, 31 March 2021) <https://www.justice.nsw.gov.au:443/defamationreview>. This asks whether reports of crime to police and other statutory investigative agencies, as well as reports of sexual harassment to employers and disciplinary bodies, should be protected by an absolute rather than a qualified privilege: Questions 18–21.
These issues might be better dealt with in the joint program of work the Commonwealth is leading on sexual assault, sexual harassment and coercive control: Attorney-General for Australia and Minister for Industrial Relations (Cth), ‘Leading a National Approach to Justice for Victims and Survivors of Sexual Assault, Harassment and Coercive Control’ (Media Release, 17 May 2021) <https://www.attorneygeneral.gov.au/media/media-releases/leading-national-approach-justice-17-may-2021>.
Specific definitions are found in Crimes Act 1958 (Vic) pt I div 1 sub-divs 8A–8FA.
This is based on the Victorian Government’s definition of ‘sexual violence’: Victorian Government, Free from Violence: Victoria’s Strategy to Prevent Family Violence and All Forms of Violence against Women (Policy, 2017) 58.
In Victoria, legislation and support services provided to people who have experienced sexual violence use the terminology of ‘victims’, including the Victims of Crime Assistance Act 1996 (Vic) and the Victims’ Charter Act 2006 (Vic).
Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).
Elaine Wedlock and Jacki Tapley, What Works in Supporting Victims of Crime: A Rapid Evidence Assessment (Report, Victims’ Commissioner for England and Wales and University of Portsmouth, March 2016) 8 <https://victimscommissioner.org.uk/published-reviews/what-works-in-supporting-victims-of-crime-a-rapid-evidence-assessment/>.
Attrition studies are more concerned with whether a whole case ‘drops off’. They are less concerned with individual charges against an accused not being proceeded with.
Vivien Stern, The Stern Review: An Independent Review into How Rape Complaints Are Handled by Public Authorities in England and Wales (Report, Home Office (UK), 2010) 10.
As only 63% of matters recorded in 2017–18 had been heard in court, the study only included offences from the previous years: S Bright et al, Attrition of Sexual Offence Incidents through the Victorian Criminal Justice System: 2021 Update (Report, Crime Statistics Agency, 2021). The study updated an earlier attrition study that considered progress through the justice system of sexual offence incidents recorded by police between January 2009 and December 2010. Incidents were studied in both the summary and indictable jurisdictions: Melanie Millsteed and Cleave McDonald, ‘Attrition of Sexual Offence Incidents across the Victorian Criminal Justice System’ (Research Paper, Crime Statistics Agency Victoria, 2017) <http://www.crimestatistics.vic.gov.au/research-and-evaluation/publications/attrition-of-sexual-offence-incidents-across-the-victorian>. Note that while two-thirds of incidents with charges heard in court were proved guilty, in the higher courts in Victoria a guilty verdict is reached just over half the time. This is lower than in other offence type, other than cases involving fraud or deception: Australian Bureau of Statistics, Criminal Courts, Australia, 2019-20 (Catalogue No 4513.0, 25 March 2021) <https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release>.
Jennifer Temkin and Barbara Krahé, Sexual Assault and the Justice Gap: A Question of Attitude (Hart Publishing, 2008) 1.
Wendy Larcombe, ‘Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape Law’ (2011) 19(1) Feminist Legal Studies 27, 42–3.
Vivien Stern, The Stern Review: An Independent Review into How Rape Complaints Are Handled by Public Authorities in England and Wales (Report, Home Office (UK), 2010) 10.
Wendy Larcombe, ‘Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape Law’ (2011) 19(1) Feminist Legal Studies 27, 29.
Consultation 77 (Witness J).
See especially Haley Clark, ‘“What Is the Justice System Willing to Offer?” Understanding Sexual Assault Victim/Survivors’ Criminal Justice Needs’ (2010) 85 Family Matters 28; Kathleen Daly, ‘Reconceptualizing Sexual Victimization and Justice’ in Inge Vanfraechem, Antony Pemberton and Felix Mukwiza Ndahinda (eds), Justice for Victims: Perspectives on Rights, Transition and Reconciliation (Routledge, 2014) 378, 388. Justice needs are also referred to as justice interests: interests that a victim has ‘as a citizen in a justice activity’ (as opposed to a personal or therapeutic need): see ibid 388.
See generally Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016).
See, eg, Wendy Larcombe, ‘Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape Law’ (2011) 19(1) Feminist Legal Studies 27, 37–8.
Haley Clark, ‘“What Is the Justice System Willing to Offer?” Understanding Sexual Assault Victim/Survivors’ Criminal Justice Needs’ (2010) 85 Family Matters 28, 28.
Victorian Law Reform Commission, Sexual Offences (Report No 5, July 2004) 83.
Kathleen Daly, Brigitte Bouhours and Australian Centre for the Study of Sexual Assault, Conventional and Innovative Justice Responses to Sexual Violence (Report, Australian Institute of Family Studies, 2011) 2.
Consultation 54 (Lucille Kent, a victim survivor of sexual assault).
Wendy Larcombe, ‘Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape Law’ (2011) 19(1) Feminist Legal Studies 27, 40–2.
Mary Iliadis, Adversarial Justice and Victims’ Rights (Routledge, 2020) 57. See also Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) Ch 5.
Mary Iliadis, Adversarial Justice and Victims’ Rights (Routledge, 2020) 57, 64.
Dietrich v The Queen  HCA 57, 177 CLR 292.
Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24, 25.
Mary Iliadis, Adversarial Justice and Victims’ Rights (Routledge, 2020) 57.
Vivien Stern, The Stern Review: An Independent Review into How Rape Complaints Are Handled by Public Authorities in England and Wales (Report, Home Office (UK), 2010); Ministry of Justice (UK), End-to-End Rape Review Report on Findings and Actions (Report, 18 June 2021) <https://www.gov.uk/government/publications/end-to-end-rape-review-report-on-findings-and-actions>.
John Gillen, Gillen Review: Report into the Law and Procedures in Serious Sexual Offences in Northern Ireland (Report, 9 May 2019) <https://www.justice-ni.gov.uk/sites/default/files/publications/justice/gillen-report-may-2019.pdf>.
Law Commission (New Zealand), The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes (Report No 136, December 2015) <https://www.lawcom.govt.nz/our-projects/alternative-models-prosecuting-and-trying-criminal-cases?id=1270>.
Royal Commissi eport, 1 March 2021) <https://agedcare.royalcommission.gov.au/publications/final-report>; Royal Commission into Victoria’s Mental Health System (Final Report, 3 February 2021) <https://finalreport.rcvmhs.vic.gov.au/>; Victorian Equal Opportunity and Human Rights Commission, Beyond Doubt: The Experiences of People with Disabilities Reporting Crime—Research Findings (Report, 2014) <https://www.humanrights.vic.gov.au/resources/beyond-doubt-the-experiences-of-people-with-disabilities-reporting-crime-jul-2014/>; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Web Page, 2021) <https://disability.royalcommission.gov.au/royal-commission-violence-abuse-neglect-and-exploitation-people-disability>.
Some of these overlap in their scope with our inquiry, such as the joint program of work the Commonwealth is leading on sexual violence. This joint program will also consider issues like ‘consent’ in sexual offences and specialist sexual offence courts: Attorney-General for Australia and Minister for Industrial Relations (Cth), ‘Leading a National Approach to Justice for Victims and Survivors of Sexual Assault, Harassment and Coercive Control’ (Media Release, 17 May 2021) <https://www.attorneygeneral.gov.au/media/media-releases/leading-national-approach-justice-17-may-2021>.
Family Violence Reform Implementation Monitor, Report of the Family Violence Reform Implementation Monitor (Report, 1 November 2019) <https://www.fvrim.vic.gov.au/third-report-parliament-1-november-2019>.
Family Safety Victoria, Family Violence Multi-Agency Risk Assessment and Management Framework. A Shared Responsibility for Assessing and Managing Family Violence Risk (Framework, Victorian Government, 2018) 19 <https://www.vic.gov.au/maram-practice-guides-and-resources>. The Framework is a legislative instrument under the Family Violence Protection Act 2008 (Vic).
Victorian Government, Family Violence Reform Rolling Action Plan 2020–2023 (Report, December 2020) 35 <http://www.vic.gov.au/family-violence-reform-rolling-action-plan-2020-2023>.
Michelle L Macvean et al, Implementation of Recommendations Arising from Previous Inquiries of Relevance to the Royal Commission into Institutional Responses to Child Sexual Abuse (Report, Parenting Research Centre, 2015) xvi, 85, 86.
Wendy Larcombe, ‘Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape Law’ (2011) 19(1) Feminist Legal Studies 27, 42.