Does Victoria's legal system still discriminate against rape and sexual assault victims?

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2002/03: Does Victoria's legal system still discriminate against rape and sexual assault victims?

What they said ...
'The results show that things have gone backwards'
Associate Professor Alison Young, commenting on the decline in rape convictions since Victoria's rape law reforms of 1991

'Those charges and acquitted are [not] necessarily guilty'
Roy Punshon, chairperson of the Criminal Bar Association

The issue at a glance
Victoria's Law Reform Commissioner, Professor Margaret Neave, is conducting an inquiry into Victoria's sexual offence laws.
This inquiry has been prompted by a dramatic decline in the number of convictions for rape and sexual assault in this state. This decline has sparked concern that the rape law reforms of 1991 may have been inadequate. Concern has also been expressed that entrenched attitudes hostile to rape complainants among either juries or judges and attorneys may be undermining the intended effect of the reforms.
On the other hand there are those who claim that since the reforms of 1991 Victoria has among the most advanced rape laws in the world and that the decline in convictions reflects no more than how difficult it is to prove that the offence of rape has occurred.
Supporters of the current treatment of rape by Victoria's legal system are also concerned that the rights of the accused not be compromised by further rape law reforms.

Background
Victoria's rape laws were substantially reformed in 1991. After the reforms the legal definition of rape was extended beyond the penetration of a vagina by a penis. Under the law it now includes other forms of penetration. The meaning of consent was changed so that merely because force was not used consent could not be assumed. A complainant could no longer be examined about prior sexual history unless the judge gave permission. Finally, the accused was no longer able to make unsworn statements from the dock.
A further change that has occurred since 1991 is that there has been an increase in the number of complainants alleging abuse, especially incest. In some cases the supposed offences occurred as long ago as the 1960s.
What is concerning many legal commentators is that despite the law reforms of the 1990s, the number of convictions for rape and sexual assault has fallen dramatically from 46 per cent in 1988-89 to less than 26 per cent in 1997 to 1999.
A recent development in New South Wales may be having an indirect effect on the debate in Victoria on how best to deal legally with the crime of rape.
There has been a significant increase in gang rapes in New South Wales. A number of these rapes appear to have a racial element, being perpetrated against Caucasian women by Lebanese men. There has been significant public outcry against this development and obvious popular dissatisfaction with the supposed leniency of the sentences given some of those convicted for these offences.
Thus attitudes against rape appear to be hardening in New South Wales. In Victoria the concern is that despite some of the most advanced rape laws in the country, the low conviction rate for this offence may indicate that an unacceptably high percentage of rapists and sex offenders are being acquitted.

Internet information
The terms of reference of the current Victorian Law Reform Commission's inquiry into sexual offences and the law can be found at http://www.lawreform.vic.gov.au/CA256A25002C7735/All/7E3863042EE45AAACA256A410024CD09?OpenDocument&1=30-Current+projects~&2=20-Sexual+Offences~&3=~

On November 19, 2001, The ABC Radio National program, World Today, broadcast an interview with Professor Margaret Neave, the Victorian Law Reform Commissioner, and Jackie White, a spokesperson for CASA (the Centre Against Sexual Assault).
The interview dealt with what each of the interviewees believed lies behind the drop in convictions for rape in Victoria.
A transcript of the interview can be found at http://www.abc.net.au/worldtoday/s420201.htm

On August 27, 2001, The ABC Radio National program, World Today, broadcast comments from a range of experts and public figures on the New South Wales Government's intention to increase penalties for gang rape to those meted out for murder. Among those interviewed was New South Wales Premier, Mr Bob Carr.
A full transcript of the interviews can be found at http://www.abc.net.au/worldtoday/s353077.htm

A briefing paper was prepared in December 2001 for the New South Wales 'Sentencing "Gang Rapists": The Crimes Amendment (Aggravated Sexual assault in Company) Bill 2001"
This briefing paper outlines the provisions of the Bill. It also gives a range of viewpoints on the current debate surrounding the Bill, including claims that sentences are too lenient, the importance of the independence of the judiciary, the judicial process and the role of victims and the interplay between ethnicity and crime.
This is a lengthy document, but it is an extremely informative one.
It can be found at http://www.parliament.nsw.gov.au/prod/web/PHWebContent.nsf/Home?OpenFrameset&Frame=Main&Src=http://www.parliament.nsw.gov.au/prod/web/PHWebContent.nsf/PHPages/ResearchBf122001?OpenDocument

East Centre Against Sexual Assault (SECASA) is a Victorian association that offers support for victims of sexual assault.
SECASA's Internet site has a section dealing with sexual assault and the law it gives details of a number of sexual assault cases that are intended to show that in practice victims of sexual assault are not always treated fairly or equitably by Victoria's legal system. This material appears to have been put together in 1993.
It can be found at http://www.secasa.com.au/survivors/html/sexual_assault_and_the_law.html#top

Arguments that Victoria's legal system does not discriminate against rape and sexual assault victims
1. The rights of the accused need to be protected as well as the rights of the supposed victim
Roy Punshon, the chairperson of the Criminal Bar Association, has noted that critics of falling conviction rates in rape cases in Victoria all appear to assume that Victorian courts are letting guilty people go unpunished.
Mr Punshon replies, 'Juries are empanelled to decide cases, including cases of rape , on the basis of evidence presented to them ... It is an insult to those members of the general public who conscientiously attend to their duty in these cases to suggest that they fail on rape.'
In order to protect the rights of the defendant, the case against him must be proved, however, the nature of the offence can make it very difficult to establish guilt beyond reasonable doubt. Thus the legal safeguards that exist to ensure that a wrongly accused person is not convicted make the successful prosecution of a rape case problematic.
Roy Punshon has stated, 'The undeniable trauma suffered by assault victims does not mean that an accused person should lose the right to the presumption of innocence.'

2. Sexual assault and rape charges are, by their nature, very difficult to substantiate
Rape is generally an offence that involves only the victim and the assailant and occurs in private. It is also often the case that neither party denies that sexual intercourse occurred; what is at issue is whether it was consensual. Where the supposed victim knew her supposed assailant and where there is no evidence of violence, it is literally a matter of one person's word against another's.
Age reporter Darrin Farrant, in an article published on November 24, 2001, noted, ' ... it can often come down to a question of he says versus she says, and one person is lying. Given that there are rarely any witnesses, the accused has the benefit of the doubt and often prevails.'

3. Recent law reforms have gone a long way toward protecting those who claim to have been raped or sexually assaulted
Under law reforms introduced in Victoria since 1991, the legal definition of rape has been extended beyond the penetration of a vagina by a penis. Under the law it now includes other forms of penetration.
The meaning of consent has been changed to confirm that merely because force was not used consent cannot be assumed.
A complainant can no longer be examined about prior sexual history unless the judge gives permission.
Further, the accused is no longer able to make unsworn statements from the dock.

4. More problematic rape and sexual assault cases are now coming before the courts
It has been claimed that a more sympathetic attitude within the legal profession toward those claiming to have been raped or sexually assaulted has meant that cases are being proceeded with which would previously have been discarded due to lack of sufficient evidence.
For example, there is now a willingness to prosecute in cases where a woman accuses a previous sexual partner of rape or where the offence occurred many years ago. In instances such as these it can be particularly difficult to marshal enough evidence to prove the prosecution case conclusively.
Roy Punshon, the chairperson of the Criminal Bar Association, has made this point. Mr Punson states, '... it may be that cases are being charged and prosecuted where the evidence is lacking and, as a consequence, no reasonable prospects of conviction exist.'
Defence lawyer, Michael Rush, has made a similar point. Mr Rush has stated, 'Now may be the time to examine the sorts of cases being brought before the courts.
No one wants to hear ... that the terrible attack that happened to them might not be worth taking to court because the evidence is not strong enough.
Or that the school master that abused them 25 years ago is going to get off because memory will be seen as unreliable.'

5. Defence lawyers are not able to shape the selection of a jury panel
It is claimed that defence lawyers have a very limited capacity to shape the composition of a jury. Michael Rush and Poy Punshon, both of whom are defence lawyers, have each made this point. The only information they have before a possible challenge is the juror's name and occupation. They claim that this is not enough to indicate where the juror's prejudices might lie. They have also indicated that the number of challenges they are allowed has been reduced.
Michael Rush has also claimed that juries are now better informed than they once were and that they would not accept a defence lawyer harshly interrogating a complainant, even if the judge allow it.
Mr Rush has stated, 'In the 1980s, if you could escape calling your client (to give evidence as a witness), you would. Now the jurors expect the defence to enter the frame. If they don't, they think you have something to hide.'
Mr Rush has also stated that in the 1980s 'barristers were much more aggressive towards a complainant' apparently aiming to demonstrate, if possible, that she was promiscuous, but Mr rush believes that such interrogation today 'would only alienate me and my client' from the jury.

6. Governments cannot intervene to the point where they would impinge on judicial independence
It has also been claimed that Governments have very limited power to influence the operation of the judicial system. Under Australia's Westminster system of government, each branch of government is meant to function independently of the other. Thus, the political branch of government is not meant to be able to shape the judiciary to its will.
The Victorian Attorney General, Rob Hulls, has made this point. Mr Hulls has stated, '... real democracy depends on an independent judiciary, unfettered by political interference.
The call by the president of the Crime Victims Support Association ... to change our present system would allow politicians to be judges, jurors and executioners.'
According to this line of argument, it is very important that politicians adopt a hands off approach to the legal system, forming laws in Parliament, but not taking any actions that might be seen to reduce the independence of the judiciary. If they were to intervene in this way the fear is that they would be exercising power beyond their competence and that they may even be influenced by considerations of short-term political gain.

Arguments that Victoria's legal system continues to discriminate against rape and sexual assault victims
1. The number of convictions for rape charges is falling
Critics of the operation of the current rape laws in Victoria are concerned by the extremely low rate of convictions in rape cases in this state.
Fewer than 25 per cent of those charged with rape between 1997 and 1999 were convicted. This compares with a conviction rate of 46 per cent in 1988-89 (two years before the first of Victoria's extensive rape law reforms).
It has further been suggested that this decline in the number of convictions is not the result of a larger number of rape cases coming to court.
Marcia Neave, Victoria's Law Reform Commissioner, has pointed out that there has been no significant increase in the number of sexual assault and rape cases coming to court.

2. The recent rape and sexual assault law reforms are not being fully implemented
It has been claimed that not all the rape law reforms instituted since 1991 are being put into practice. In particular, critics of the current operation of Victoria's rape laws note that many complainants are being required to testify about their previous sexual history, despite the fact that the new rape laws can protect them from this.
A complainant's sexual history can only be introduced at the discretion of the judge. Many judges are apparently not disallowing such evidence despite having the capacity to do so.
Shannon-Caroline Taylor of Ballarat University has studied children alleging sexual assault. Taylor maintains that children are routinely subjected to either gruelling or irrelevant questions.
Associate Professor Alison Young, a Melbourne University criminologist, notes that 'one woman was asked whether she would describe herself as a "good-time girl". They are questioned about the alcohol being consumed, whether they dressed in a certain way ... or engaged in extrovert behaviour, flirting with men.'
Young says that judges often do not prevent such questioning and that the prosecutor fails to object to such questions.
Young has claimed, 'I think prosecutors tend to object when something is explicitely outrageous, as opposed to when something is borderline.'
Young has further stated, 'Lawyers tend to stick to established procedures ... A lot of judges are fairly set in their ways as well.'

3. Many juries have too narrow a view of what constitutes rape
It has been suggested that many people, including many jurors, hold a stereotyped view of what constitutes rape, believing that the offence is usually committed by a stranger and usually involves violence.
Associate Professor Alison Young, a criminologist at Melbourne University, has made this point. Professor Young claims that notions of 'real rape' still persist in the community and that where a person knows their attacker or has not been injured there is the suspicion that they may have consented to intercourse.
Professor Margaret Neave, Victoria's Law Reform Commissioner, has claimed that 'Many people still think that if you haven't fought, you have consented.'
Research apparently contradicts the popular view as at least 80 percent of sexual assault victims are attacked by someone they know.

4. Sentences for those convicted of sexual assault are inadequate
This claim has been made in relation to those found guilty of most offences by Mr Noel McNamara, president of the Crime Victims Support Association. Mr McNamara has given particular examples of sexual assaults where he believes the sentences given to convicted offenders were demonstrably inadequate.
Mr McNamara has cited the following example, 'Recently a man was convicted in Victoria after pleading guilty to five counts of committing an indecent act with a child under 16. He was sentenced ... to an immediate three-month jail term suspended for 12 months, and ordered to serve an 18-month community based order on his release from prison ... This man has ruined the lives of two innocent girls ... Hardly seems fair, does it?'

5. Governments can intervene to increase maximum sentences for rape and other forms of sexual assault
The New South Wales Government has responded to popular dissatisfaction at supposedly lenient sentences for a number of gang rapists in that state by introducing legislation to increase the maximum sentence for gang rape to a life sentence. The New South Wales Attorney-General, Mr Bob Debus, has also applied for a sentencing guideline on rape cases.
The New South Wales Premier, Mr Bob Carr, has stated, 'The application for a guideline judgement is the people's way of saying to the courts - we want longer sentences for rapists and gang rapists.'
The serious position adopted by the Government may also have contributed to the New South Wales Chief Justice's decision to have gang rape cases heard in the Supreme Court, alongside other serious offences such as murder.

6. Rape and sexual assault charges do not suit our adversarial legal system
It has been claimed that the nature of sexual assault cases is particularly ill suited to the adversarial system of justice. According to this argument, the adversarial system inevitably pits the complainant or the prosecutor against the accused and in the case of alleged rape maximises the tendency for each side to attempt to destroy the sexual reputation of the other.
It has been claimed that in the adversarial system the sort of moderate, considered weighing up of conflicting testimony that is necessary to resolve an accusation of rape is particularly difficult.
Philip Ponder, in a letter published in The Age on November 23, 2001, made the following suggestion. 'A possible solution is to have an impartial judge and jury work together to establish the whole truth of the matter. The judge would perform cross-examination of witnesses (including the accused) .... All relevant evidence would be considered and its weighting explained to the jury by the judge.
This scenario might prevent the trauma to which many witnesses are exposed and, in particular, would protect victims of rape from the legal tactics often used by defence lawyers.'

Further implications
Popular outrage over supposedly lenient sentences for gang rapists in New South Wales does little to illuminate the situation in Victoria.
The gang rapes in New South Wales all fitted the generally accepted stereotype, that is, the rapists did not know their victims and used force against them. There were also compounding factors as the rapists, many of whom were Lebanese, appeared to be at least partially motivated by racist issues in their attacks on Caucasian girls. This racial element is likely to have increased public indignation over the crimes beyond the level that might normally be anticipated for a rape or sexual assault.
Professor Neave has suggested that when the Victorian Law Reform Commission releases its report on sexual offence laws in Victoria its recommendations may be 'outside the square'.
According to Professor Neave, Victoria has already gone a long way toward addressing the disadvantage that rape complainants used to be at before the law. The 1991 law reforms may have gone as far as legislation can in supporting the rights of the complainant.
Professor Neave has also noted that there are gender-bias programs in place for judges who appear to treat women complainants in an inequitable or biased fashion.
It has been claimed it will be extremely difficult to modify the attitudes of juries or even to discover what they are. Privacy laws covering juries are so strict that it is difficult to analyse their behaviour.
What has been suggested is that Victoria may need to look at more specialist reforms. For example, Florida has set up a specialist sex offences court, with trained judges and court staff.

Sources
The Age
1/9/01 page 6 (News Extra section) editorial, 'When rape stirs up ethnic tensions'
7/9/01 page 9 news item by Robert Wainwright and Les Kennedy, 'Trio faces appeal over gang rape'
19/11/01 page 3 news item by Darrin Farrant, 'Top lawyer says juries fail on rape'
21/11/01 page 16 letter to the editor from Roy Punshon, 'Presumption of guilt'
21/11/01 page 16 letter to the editor from Professor Alison Young, 'Not only juries fail on rape'
23/11/01 page 14 letter to the editor from Philip Ponder, 'Rape: it is about justice, not "winners"'
24/11/01 page 1 (News Extra section) analysis by Darrin Farrant, 'The riddle of rape: why are convictions dropping?'
24/11/01 page 2 (News Extra section) comment by Marcia Neave, 'On rape and retribution'
24/11/01 page 2 (News Extra section) interview with Michael Rush by Darrin Farrant, 'Proving reasonable doubt is no mean feat'
24/11/01 page 2 (News Extra section) interview with Professor Alison Young by Darrin Farrant, 'Reforms have failed to help sex victims'
24/11/01 page 2 (News Extra section) analysis by Darrin Farrant, 'The key to a case lies in jury profile'

The Australian
3/9/01 page 13 comment by Janet Albrechtson, 'Ignoring the race factor doesn't help'
5/9/01 page 4 news item by Monica Videnieks and Adam Daff, 'Pack-rape sentence stayed'

The Herald Sun
19/11/01 page 20 comment by Noel McNamara, 'The law is failing the people'
22/11/01 page 18 comment by Rob Hulls, 'Public has a say on laws'