The Response of the Justice System to Sexual Offences
Presenter: Gemma Walsh
- The Hon. Tony North, chairperson, Victorian Law Reform Commission
- Jacinth Pathmanathan, team leader, sexual offences inquiry, Victorian Law Reform Commission
- Emma Larking, senior policy and research officer, Victorian Law Reform Commission
This episode includes sexual assault and/or violence material. Some content may be confronting or disturbing. If you or someone you know is affected by sexual assault or family violence, call 1800 RESPECT on 1800 737 732, or visit www.1800respect.org.au.
Gemma: Welcome to ‘Old Law, New Law’ a podcast by the Victorian Law Reform Commission. I’m Gemma Walsh, and today we’ll betalking about the VLRC’s latest inquiry into the justice system’s response to sexual offences. With me is the Honourable Tony North, VLRC chairperson; Jacinth Pathmanathan, team leader of the sexual offences inquiry, and Emma Larking, senior policy and research officer at the VLRC. In April this year the Victorian Law Reform Commission was asked to review and report on Victoria’s laws relating to rape, sexual assault, and associated adult and child sexual offences. So I might start with you Tony: can you clarify what we mean by sexual offending in relation to this inquiry?
Tony: Sexual offending is criminal conduct. There are two major criminal offences: rape and sexual assault. They involve sexual penetration without consent, in the case of rape, and touching someone sexually in the case of sexual assault.
Gemma: Why is this review needed, and what specifically will the VLRC be looking at?
Tony: We want to explore in this reference the barriers to reporting offences, where offences are reported, and the process of the legal system is commenced, we notice that many of the reports don’t get to the end of the system, in other words don’t ultimately go to court. So we ask and explore why that is the case. In the case of those reports that go through the criminal justice system, what is the impact on victim survivors who have to tell their story to a court room? Because the criminal justice system may not give victims the sort of satisfaction that they need, whether there are other ways of responding to sexual offending which might better suit the needs of victims.
Gemma: So we’re really looking at why it is that people may not report a sexual crime, and if they do report it, how the process can be made better. Emma, can you elaborate on that?
Emma: The barriers are massive, because what we know is that around 85-90 per cent of people who’ve been sexually assaulted don’t actually report that assault to the police. Not only is the failure to report a really significant issue, but the offending itself is a huge issue in our society. So we know that around one in sex women after they turn 15 have been assaulted. So it is a phenomenon that is significantly gendered, so it is mainly women and children who are the subject of sexual assault or sexual abuse. Men are also sometimes sexually harmed and the figure for men is around one in 25 men as adults will be sexually abused.
Gemma: What are the reasons why someone who has been assaulted might not report it?
Emma: It’s not always clear exactly what the barriers are. So when you ask women in particular, one in four women will say that they felt embarrassed or ashamed about the incident. A big proportion of women will also say that they felt like they could deal with it themselves, or that they didn’t regard the incident as a serious offence. And then there’s a whole range of other reasons that might present particular barriers for particular groups of people, so for example if you’re a woman on a temporary visa, and you’re very uncertain about how your interaction with the police might play out in term of your visa status, that might be a barrier to you reporting. We also know that about half of sexual assaults occur in a context of family or domestic violence, and that around 85 per cent occur where the person who assaults the other person is known to the person harmed. So that in itself can be a barrier to reporting, because there are all sorts of social and familial repercussions. There might be issues and often are issues around fear of the person responsible for the harm. So those are big issues.
Gemma: Do do people’s perceptions around what constitutes a sexual offence affect reporting rates?
Emma: A survey done in 2017 about community attitudes to violence against women, showed that nearly 20 per cent of people don’t actually know that non-consensual sex in marriage is against the law, and around one in 10 say that they believe that women are probably lying about sexual assault if they don’t report it straight away. Now that’s a staggering figure when we know that actually most women don’t report sexual assault straight away. And then around four in ten people agree with the statement that it’s common for sexual assault accusations to be used as a way of getting back at men. So I think knowing that those views or understandings are prevalent in society, then hearing women say ‘Well I’m not going to report because the incident wasn’t serious, I felt ashamed, I’m not going to be believed – there’s good reason that they have those feelings. And I also think that people’s experience of the justice system in the past has been so horrendous, and women who have gone to the police will often say say it was a traumatising experience.
Gemma: But there have been some changes in the way victims are treated, haven’t there? Can you tell us about some recent reforms, Jacinth?
Jacinth: I think the criminal justice system’s response to sexual offences has changed tremendously over the last two decades, so when you report a sexual offence now you often get a specialist response from police, there are now specialist investigators who respond to sexual harm, and child abuse reports, there are now places in Victoria that people can go which are called multi-disciplinary centres, and these are one-stop shops where you can access police and other services, child protection, counsellors.
Gemma: And what about after that critical reporting stage – have there been any changes to court procedures, or support for victims?
Jacinth: I think another area of great change has been the support for victim survivors. There are many more supports available now in terms of counselling. There’s a child witness service available just for children, we have intermediaries to support children and people with cognitive impairments. There have been several efforts aimed at making the trial process less traumatic for victim survivors as well,
for example children and people with a cognitive impairment can pre-record their evidence, adult victim survivors can give their evidence outside the courtroom through closed circuit television. And alongside this we’ve also seen very strong law reform in this area. So there are now directions that judges give to juries to counter misconceptions about sexual harm, for example they might tell the jury that people who do not consent to sex may not be physically injured, and we know that this is quite common, that the injury rate in sexual offences is very variable.
Gemma: So can you talk about any other alternative reporting methods? You’ve touched on multidisciplinary centres that might reduce the trauma of people who’ve experienced sexual assault, in the justice system?
Jacinth: Yes I think the traditional understanding of what it means to report a sexual offence is the person who has been sexually assaulted going into a police station and sitting down with a police offcier to make a police report. We’re very interested in thinking about what reporting means more broadly, in the sense that reporting could not involve going anywhere, and it might also not need to involve the victim survivor at all. So there’s a move for example in sexual harassment to encourage bystanders who witness sexual harassment at work to take action. In the United Kingdom and Germany people who are concerned about their sexual interest in children can seek support on a confidential basis. Another area that we’re really interested in is reporting using technology, for example through an online platform. This idea has been picked up all over the world, by universities, and even in other states in Australia, New South Wales and Queensland.
Gemma: And you mentioned earlier about specialist courts, can you elaborate on that? Is that happening elsewhere?
Jacinth: Yes, there are many types of specialist courts, but when we talk about a specialist sexual offence court what we mean is a court whose case load consists mostly of sexual offence cases, and the people who work in that court, like judges and lawyers, will be specially trained in sexual harm, they might operate on best practice principles and procedures. A court like this already exists in New Zealand and was a recommendation of the New Zealand Law Commission in 2016. Specialist courts can also include problem solving aspects. For example the New York Sexual Offense Court is not just concerned about determining guilt, but it also tries to address the underlying issues of offending and make it less likely that the person will reoffend.
Gemma: As part of that specialist court, are they looking at professional jurors?
Jacinth: They did consider professional jurors as part of the New Zealand Law Commission report in 2015, as far as we know the recommendation hasn’t been implemented yet but it definitely raises some interesting issues for us. So professional jurors are basically people who either have work experience in sexual harm or have been trained in sexual harm for the purpose of sitting on a jury. The idea is that the judge and these jurors would sit together on the bench, the jurors would also receive all the material on the case, they would deliberate together, and in some cases the jurors’ role could be to advise the judge on what they think the decision in the case could be, or they could have independent voting power, which we understand is the case in Germany. The idea behind it is that by having people with special knowledge in sexual harm you’re more likely to get to a fair decision.
Gemma: Yeah, because they have done evaluations since then and it does sound like cases are progressing more efficiently, and people believe the trial quality has improved so it is an interesting thing to look at, isn’t it?
Jacinth: Yes, I think there are quite a few benefits potentially of sexual offence courts. Efficiency is one of them, I think when you work in an area for a long time you tend to become good, and you tend to become faster at what you’re doing. Another benefit is the quality of decision making, so people who are specialists are more likely to make decisions based on informed knowledge rather than on misconceptions. There are some disadvantages that we should note as well, I think. One of them for example is burnout. So obviously when you’re working in an area like sexual offences, the material can start to wear you down and people might feel burnt out after working in that area for a while. Another potential disadvantage we’ve been alerted to is the difficulty in attracting people to that sort of work, so the narrowness of the work could make it harder to attract people to work in the sexual offence court.
Gemma: If you don’t want to take it to court, is restorative justice something that the VLRC is also looking at in terms of this inquiry?
Emma: Yes, we’re really interested to know whether there is support for it. We have a sense that there is a strong level of support in many sections of the community who have had some engagement with restorative justice, but there is also not a great deal of knowledge I think in the broader community about what it actually is.
Gemma: So can you explain it to us please, Emma? What kind of process is it?
Emma: A process that focuses on healing, and to the degree that it is relevant, restoring relationships, so if there are existing relationships it’s trying to involve everyone who’s been involved in the crime, whether that’s the person responsible for the harm, the person who’s been harmed and family members or community members, to support them to go through a process where the person harmed is at the centre of the process, and is able to say, ‘This is what I need or want to be able to move on from this situation.’ And it gives the person responsible the opportunity to be able to take some responsibility, to commit to making some reparations, or to take steps that the person who has been harmed thinks would be helpful. Things like they might agree to do a treatment program, a behavioural change program, they might actually pay a sum of money as reparation, they might agree not to engage in, go along to family events if it’s a family situation, so there are a whole lot of different outcomes that can come out of the process. But what a lot of victims, people who’ve been harmed who’ve been through aout the process say is that it gives them the central role in the process, which is the opposite of what happens to them in the criminal justice setting. It gives their voice and autonomy back and I think that’s potentially so powerful because that’s what they’ve been deprived of. But it’s also tricky in the case of sexual offending because power dynamics might play a role. You need to have the process very carefully supported and facilitated by professionals who are expert in the area and have expert knowledge.
Gemma: And who decides who would participate in restorative justice? Would it be compulsory?
Emma: So one of the fundamental principles of restorative justice is that all the participants are involved voluntarily. So it’s their choice to be involved. The person who’s responsible for the offending or the harm has to have accepted, at least to some degree, some responsibility. How they do that might be a process that hopefully deepens and becomes more meaningful through the course of restorative justice, but their involvement can’t be coerced if the whole idea of restorative justice is going to function effectively.
Gemma: And would restorative justice work in all cases of sexual offending?
Emma: Look it could potentially work, it’s interesting because it’s so flexible. So how it operates is very much guided by the preferences of participants. So you might get a whole group of survivors who say, ‘We want to talk to the perpetrator, or the person who committed the offence, and we want to all be there in the room with this person and explain just what an effect what that person did to us had on our lives.’ If the person responsible agrees to that, if the process could be facilitated carefully so that everyone involved is safe and supported, I think that could potentially work very well. The Royal Commission into Institutional Responses to Child Sexual Abuse actually advised against restorative justice for those cases because – well for a range of reasons, there was concern that the power dynamics of sexual abuse might be replicated in the conference environment, there was also a feeling that people who’d committed the offences just weren’t likely to participate, and because the offences were historical and often many many years old, there was a feeling that it’s just probably not going to be tenable.
Gemma: Is there a problem that perpetrators might engage in restorative justice in order to get a reduction in their sentence?
Emma: Yes that’s definitely a concern. You could manage that by setting up a system where the courts aren’t allowed to take restorative justice outcomes into account. That’s not how most systems work, so in the ACT courts are entitled but not required to take into account someone’s participation in restorative justice for sentencing purposes. But we’ve been speaking to restorative justice practitioners who suggest that it’s not necessarily going to represent evidence that someone is engaging in an inauthentic way. Everyone emphasises very strongly that you can’t provide incentives or make the incentives the sole reason for someone getting involved in the process. It’s a difficult issue to handle, but I think the process itself if it’s done well can encourage someone to take on board responsibility.
Gemma: That’s all we have time for today. If you’d like to know more about our inquiry, Improving the Response of the Justice System to Sexual Offences, please visit the Victorian Law Reform Commission website where you will find the issues papers and information about how to make a submission by December 23rd 2020. If you have personal experience of being sexually assaulted, or have helped someone who has, you can give us feedback through a short online form at the website of Engage Victoria. Look for the links in the description of this podcast. Join us again next time for more ‘Old Law, New Law’.