A sweeping review of how the criminal justice system handles sexual offences has recommended major changes to how the crimes are prosecuted and how those reporting them are treated.
The Australian Law Reform Commission set out to try and address the strikingly low rate of reporting of sexual offences and even lower rates of prosecution and convictions.
Nine in ten women who experience sexual violence do not report it, according to the report tabled on Thursday, and in some states and territories, up to 85 per cent of police reports do not see charges laid.
The inquiry heard that when cases do make it to court, many find the experience to be re-traumatising and the report warns that sexual violence often results in no consequences for those perpetrating it.
It recommended a slew of changes to the court process, including more opportunity for victims to pre-record evidence ahead of the trial and a review of what impact mandatory sentences are having on guilty pleas.
The report also called for all states and territories to adopt a uniform approach to consent laws, including agreeing on what does not constitute consent — such as an absence of resistance.
And it said the states and territories should change laws to prevent an accused person from personally cross-examining their alleged victim when they are not represented by a lawyer.
Katy Gallagher said the report was “an important step” towards ending the cycle where victims are re-traumatised in the court system. (ABC News: Matt Roberts)
The federal government released the report but has not yet responded to the 64 recommendations.
It has, however, announced $21.4 million in funding for immediate steps, including funding for sexual assault legal services across the country.
Mandatory sentencing issues
The report takes particular issue with mandatory minimum sentence rules for sexual offences in place around the country, arguing they subject victims to trials they might have otherwise avoided.
It said the rules — which are in place in Queensland, South Australia, Victoria and the Northern Territory, as well as federally — are problematic, removing any incentive for an accused person to plead guilty.
Mandatory minimum sentence rules might require judges to hand down sentences of a certain length or specify how long non-parole periods must be.
The commission argued that because those accused of sexual offences faced the same penalty regardless of whether they pleaded guilty or not guilty, they were more likely to opt for a trial, putting the alleged victim through a potentially unnecessary court process.
“The ALRC is not suggesting that sentences for people convicted of sexual offences should be more lenient,” the report read.
“Sentences should reflect the facts and circumstances of the offending and the person convicted of the offence.
“An investigation of the extent to which, if at all, the sentencing regimes are inadvertently increasing the necessity for jury trials should occur because of the impact trials have upon people who have experienced sexual violence and the criminal justice system as a whole.”
Making trials easier
The report also dwelled on problems within trials themselves and how to avoid re-traumatising those asked to give evidence.
In particular, it recommended allowing complainants to pre-record their evidence outside of a trial and away from a jury.
Instead, they would be able to give their evidence in a comfortable, private space rather than a courtroom and while accompanied by a support person or advocate.
One benefit, it said, would be “reducing the stressful and traumatising experience of waiting to give evidence at the trial and the adversarial nature of the trial itself”.
Pre-recording evidence is currently an option for some children and people with cognitive impairments but is otherwise largely not permitted.
The report acknowledged concerns in countries like the United Kingdom about the use of pre-recorded evidence, including a lower conviction rate and delays to trials due to a lack of urgency to hear evidence.
But it argued the benefits significantly outweighed those concerns and more widespread use of pre-recorded evidence should also come with efforts to have trials dealt with much faster.
It also recommended a change to prevent those accused of sexual offences from directly cross-examining their alleged victim.
Currently, defendants can opt to go without legal representation and instead represent themselves in court and therefore conduct their own cross-examinations.
The commission said they should be prevented from cross-examining their alleged victim or their family members.
Instead, they should be required to do so through another person appointed by the court.
Calls to unify consent definition
The commission also called for a more uniform approach to how consent is defined across the states and territories, and in particular, what does not constitute consent.
It noted that all states and territories broadly accepted that “not saying or doing anything” was not consent.
The states also have different rules about what a person is required to do to find out if someone is consenting or not.
The report stopped short of recommending harmonisation of an “affirmative consent” model across the country, arguing more work was needed to work out which model was best.
But it said there should be agreement about what consent was not, including previously consenting to sex and an “absence of resistance”.
It argued that jurisdictions should also agree on rules about situations where a person did not do or say anything to communicate consent or could not consent — such as if they were asleep, unconscious or affected by drugs or alcohol.
Funding for ‘justice navigators’
The federal government said it would work with the states and territories on a longer-term response to the recommendations.
In the interim, they pledged $19.6 million in funding for three sexual assault legal services in Victoria, Western Australia and the ACT and pilots of similar services in the other jurisdictions.
That includes trialling one recommendation from the report: employing “Justice System Navigators” to help people making a report work through the police and court process.
Minister for Women Katy Gallagher said the report was an important piece of work.
“Far too many women experience sexual violence in their lifetime, and for many, their experience with the justice system can only add to that trauma,” she said.
“This report from the ALRC is an important step towards ending that cycle of trauma.
“We will continue to work hand in hand with victim-survivors, advocates, and states and territories on the next steps from this report, but this announcement also increases access to services right now — ensuring women can access more support when they need it.”
