History of activism and legal change

24.52 This section briefly canvasses the last three decades of legislative and procedural change to improve responses to sexual offences, increase reporting and to reduce the negative experience of complainants in sexual assault proceedings. The changes made to the law and procedures have variously been intended to

take greater account of the realities of rape and sexual abuse, to make the trial process less daunting for complainants and to encourage a higher proportion of victims of sexual assault to report these crimes to the police.[74]

24.53 Since the 1970s there has been considerable change to the law relating to sexual offences across Australia, as has been the case in many other countries—parallel to a move towards the introduction of family violence legislation and protection order regimes.[75] In relation to sexual assault reforms, these developments were brought about by a number of factors including: growing community awareness about the extent of sexual violence and the manner in which complainants were historically treated by the legal system; the growth and activism of the women’s movement in this area;[76] and growing awareness about the particular problems faced by child sexual assault complainants in the legal system.[77]

Historical approaches to sexual violence

24.54 Feminist research and advocacy from the 1970s argued that the law addressed sexual assault in discriminatory ways, including the way in which it viewed and assessed women and children as complainants. This work drew attention to a range of myths and misconceptions that underpinned the approach of not only the laws on sexual assault, but the approaches of key legal players (police, prosecutors, defence lawyers and judicial officers). This work highlighted the way in which the law in this area has largely been defined and implemented by men and presents particular historical ideas about women, children, men, sexual violence, and sexual relationships more generally.

Myths and misconceptions

24.55 A range of myths and misconceptions about women, children and sexual assault have underpinned the legal and evidential rules in sexual assault proceedings. They have been the subject of extensive commentary in the literature and of considerable law reform in order to counter their resilience. Key myths and misconceptions (frequently inter-related) include the following.

That women and children are inherently unreliable and lie about sexual assault

24.56 The idea that women and children are inherently unreliable and lie about sexual assault focuses on the ‘untrustworthiness’ of women and children generally, particularly when they complain about sexual assault.[78] It is clearly demonstrated in the emphasis on corroboration of women’s and children’s evidence in sexual assault trials. While corroboration is no longer required, remnants of this myth can be discerned in various common law directions to the jury that remain in currency despite successive restrictions in legislation around Australia. Judicial warnings are discussed in detail in Chapter 28.

That the accusation of rape is easily made, but difficult to challenge

24.57 This view is clearly reflected in the oft-quoted assertion by the 17th century English jurist Sir Matthew Hale that ‘rape is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused, tho’ never so innocent’.[79] The belief is connected with the emphasis on corroboration and ideas about what a ‘real’ rape looks like.[80] It is a powerful notion not only in positioning women and children as potential liars, but feeds into other conceptions of particular women as vindictive or vengeful—for example, a woman who makes allegations against a former spouse might be characterised in this way; and wanting to hide their sexual behaviour—the suggestion that some young women, in order to hide their sexual activities from their parents, ‘cry rape’.[81] It is one basis for the ever present concern about ‘false’ allegations.

That sexual assault is most likely to be committed by a stranger

24.58 Most sexual assaults are actually perpetrated by someone known to the victim and often known very closely. This fact conflicts with popular ideas of who is a rapist, and who is a ‘real victim’. This myth connects with a range of other myths—for example, the assumption that victims of rape report without delay, while this may be a more complex process of recognition and decision for those who are raped by an intimate partner or family member.

That women cannot be sexually assaulted by their spouse

24.59 This was the situation under common law—although significantly not the reality for many women—until the 1980s, when all Australian jurisdictions amended their law. Prior to this time it was generally not possible for a man to be charged with, and prosecuted for, raping his wife or, in some cases, de facto partner.[82] The marital rape immunity was based on historical notions that women became men’s property on marriage, and that through marriage women consent, on a continuing basis, to sex with their spouse. It is the articulation of this notion by Sir Matthew Hale that is most often quoted:

[T]he husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.[83]

24.60 While this no longer holds true in the law across Australia, and in numerous overseas jurisdictions,[84] it continues to hold some sway in community understandings about what is sexual assault.[85] This influences the extent to which these cases continue to be less likely to be reported, prosecuted and result in conviction.

That some sexual assaults are more serious and damaging than others

24.61 Earlier studies revealed disparities in sentencing sexual assault offenders depending on their relationship to the victim—with spousal rapes traditionally being seen as less serious than stranger sexual assault—and the characteristics of the victim, with sexual assaults of sex workers, for example, either being seen as ‘not possible’ or less serious, given that the provision of sex is part of her occupation.[86]

That non-consent is verbally articulated, evidenced by struggle and results in physical injuries

24.62 Many people still believe that a ‘true’ sexual assault involves the use of physical violence and that there will be physical injuries that provide independent verification of the complainant’s story. Research, however, indicates that very few cases of sexual assault and/or rape have such physical evidence.[87] The 1996 ABS Women’s Safety Survey found that only 26% of women who had been sexually assaulted since the age of 15 had sustained physical injuries.[88] It is worth reflecting here on the other ‘injuries’ and impacts sustained by women who have been sexually assaulted, including ongoing psychological impacts, fear, guilt, shame and depression.[89] Contrary to what many may assume, women who are raped by their partner may be more likely to sustain serious injuries than those raped by a stranger.[90] Considerable legislative change in the definition of consent and in directions to the jury, specifically seek to counter ideas about silence and the absence of physical struggle.

That a ‘true’ or ‘genuine’ victim of sexual assault does not delay in reporting

24.63 Many people still think that a person who has been sexually assaulted would report without delay, and that the failure to do so is suggestive of fabrication. Again this connects to the dominant idea that women and children lie about sexual assault. Given what is known about the fact that so few acts of sexual assault are reported in the first place, the resilience of this myth as an indicator of truth stands counter to the evidence. Despite legislation that requires a judge to explain to the jury that there may be ‘good reasons’ why a victim of sexual assault may delay in reporting to the police,[91] women and children can still expect to be cross-examined at length on this point.

24.64 There are other myths and misconceptions, including that men have uncontrollable sexual urges,[92] and related to this, that women have a responsibility to monitor and curtail their own behaviour (dress, intoxication, flirtation) in order to avoid sexual assault.

24.65 The various myths and misconceptions about sexual violence, women and children, have been challenged and addressed over time. There remain ongoing connections, however, between these historical notions demonstrated in prevailing community attitudes and in the application of the law in some instances, which is a key focus of this Inquiry. These connections are raised where appropriate in Chapters 25 to 28.

The nature of sexual offences

24.66 Research on legal responses to sexual assault highlights the unique features of these offences and their treatment by the legal system. These features include: the nature of the crime for the victim, the nature of the crime in terms of the elements that need to be proved and what this means for the content of the evidence that has to be elicited from the victim, the focus on credibility, the focus on consent in adult sexual assault matters, the length and nature of cross-examination, and the likelihood that there is some close relationship between the complainant and the victim (as current or former intimate partners or family members).

24.67 Two key empirical studies published in the mid-1990s highlighted the traumatic experience of the sexual assault trial, particularly for adult women victims.[93] In 2003, the Victorian Law Reform Commission (VLRC) commented:

During the late 1980s and early 1990s substantial reforms were made to procedure and evidence in sexual offence cases. The outcomes of our research and consultations suggest that these reforms have had limited success in improving the experience of complainants in sexual offence cases.[94]

24.68 In fact, the experience of the sexual assault trial has often been characterised by victims as being a re-traumatising experience, and in some instances like being sexually assaulted again.[95] One focus of the Commissions’ work is to examine to what extent changes made since those landmark reports have served to address and limit that traumatic experience.

The ‘nature of the crime’ for the victim

24.69 There are particular dimensions of sexual offences that distinguish victims’ experiences from those of other victims of crime. These dimensions are linked to the relationship between the victim and the offender, the nature of the harm and its longstanding impact:

The crime experienced by sexual violence victims is more than an assault. The sexual nature of the act adds an additional and highly complex dimension … not only is the victim assaulted, but the private and protected physical and psychological boundaries of the person are intrusively invaded … The very nature of crime evokes certain emotions in all victims … The crime of sexual violence is no exception … the sexual violence victim is often confronted with a range of additional feelings resulting from the social stigma and physical invasiveness of the incident. These feelings can include shame, guilt, embarrassment, confusion, feeling dirty and used. Feelings of self-blame and self-recrimination are particularly common among sexual violence victims.[96]

Consent and credibility

24.70 The vast majority of adult sexual offence cases rest on the issue of consent. More often than not, there is no physical evidence of the assault or witnesses to the assault. Therefore, the focus of the trial is on the competing evidence of the complainant and the defendant about whether the sexual activity was consensual. The Rape Law Reform Evaluation Project (RLREP) conducted in Victoria found that in 30% of rape trials conducted in 1992–93, the defendant’s main argument was that the complainant had consented to the sexual intercourse. In a further 23% the ‘main line of defence was either that the accused believed the complainant had consented, or a defence which involved a combination of consent and the accused’s belief that the complainant consented’.[97]

24.71 The focus on consent, and the way in which consent is constructed in law, have been the subject of considerable criticism. It is seen as the key way in which the focus of the trial is placed on the complainant, her actions and behaviour—rather than on the behaviour of the accused. The focus on consent, therefore, is inextricably linked to the focus on credibility, where women and children—particularly when they raise allegations about sexual violence—have generally been seen as less credible.

24.72 In both adult and child sexual assault cases the key aim of defence questioning is to challenge and undermine the credibility of the complainant. For adult complainants this is intertwined with the issue of whether the activity was consensual. For children (as well as for adults) it is about whether their evidence can be believed.

Elements of the offence

24.73 In sexual offence proceedings, a complainant may be required to discuss elements of the offence, such as penetration or other genital or anal contact—in explicit detail and on multiple occasions. As noted by the New South Wales Law Reform Commission (NSWLRC), giving this type of intimate and graphic evidence can be very ‘humiliating and distressing’ for all victims of sexual assault, and may be particularly difficult for ‘women who are from different cultural backgrounds in which such matters are not conventionally discussed in front of men’.[98] Such discussions are, of course, especially disturbing and traumatic for children giving evidence of their experience.

Cross-examination

24.74 In addition to having to discuss in detail the elements of the offence in evidence-in-chief and in cross-examination, there is the experience of cross-examination itself. As one of the key strategies of the defence is to challenge the credibility of the complainant, cross-examination may take on particularly personal dimensions that may not be seen in other criminal proceedings. Research has found that, on average, cross-examination is longer in duration in a sexual assault trial when compared to other assault trials.[99]

Balancing rights?

24.75 Possible changes to the law and procedure relating to sexual assault invariably raise questions and concerns about the need to balance the rights of the accused and the rights of the complainant.[100] It is important to recognise that these are not necessarily rights in contest (although they are commonly positioned this way), but rather they both occupy important, related positions in the administration of the criminal justice system.

24.76 The VLRC in its sexual offences report articulated these positions as follows:

The criminal justice system must be, and be seen to be, fair to the accused. People accused of sexual offences are entitled to the presumption of innocence. Conviction for a sexual offence has very serious consequences for an accused, which may include a lengthy prison sentence and life-long stigma. It is vital to ensure that any conviction is based on reliable evidence. However, the criminal justice system must also take account of the needs of complainants who have a direct interest in the outcome of the prosecution, and of the community interest in encouraging people to report alleged offences and in convicting perpetrators … [C]urrent deficiencies in the system contribute to substantial under-reporting of sexual offences and discourage people who allege they have been assaulted from giving evidence at committal or trial. Criminal procedures that discourage reporting or which stigmatise and traumatise witnesses in sexual assault cases may result in some offenders escaping apprehension, which may put more members of the community at risk.[101]

24.77 In the present Inquiry, the Commissions are similarly mindful of the rights of the accused, and the rights of the complainant, in discussing possible changes to the law and procedure relating to sexual offences. The Commissions recognise the very serious consequences of being charged with a sexual offence for an accused, and the need to be able to effectively test the evidence that is presented in the case against the accused.

24.78 The ‘rights of the accused’, in essence, entail that they are not to be convicted except following the conduct of a fair trial according to the law.[102] The International Covenant on Civil and Political Rights (ICCPR) provides some further detail about elements of a fair trial.[103]

24.79 The concept of a fair trial has not historically incorporated the rights of the complainant—instead the focus is on the Crown acting on behalf of the community.[104] However, the experience and role of victims in the criminal justice system has changed in recent times with greater recognition of the rights of victims, as evidenced by various charters of victims’ rights, and in the reception of victim impact statements in some jurisdictions.[105] Rights to protection by the law and its processes are also articulated in various international conventions and declarations to which Australia is a party.[106]

24.80 The ‘rights of the accused’ are frequently raised as a powerful rhetorical tool to limit possible changes in law and procedure which aim to ameliorate some of the more negative experiences for complainants of sexual offence proceedings. Measures that might assist complainants are sometimes opposed by lawyers on the basis of perceived incursions into the rights of the accused without an appreciation of exactly what the measure is, what it is designed to do, and how it operates.[107]

24.81 The focus of reform that aims to reduce the traumatic experience of complainants in sexual offence proceedings should not be misconceived as merely aimed at increasing the rate of conviction (although this is important), but rather at improving the operation of the legal system and its response to serious criminal offences. Reform efforts to date have focused on challenging the myths that have underpinned the law’s responses to sexual assault and arguably continue to resonate with some current practices and attitudes. Such myths bear no relationship to reality and hence do not concern the accused and the right to a fair trial, but rather foster implicit prejudices to raise ‘doubts’ about the complainant’s credibility generally, and specifically credibility as a ‘true’ victim of sexual assault.

24.82 A good example of this process of interrogating what is a ‘right of the accused’ in a criminal proceeding is provided by recent legislative prohibitions on the accused conducting personal cross-examination of the complainant in sexual offence proceedings.[108] In introducing these measures there was a need to maintain the ‘fundamental rule of natural justice that people on trial for criminal offences have the right to test the evidence against them’ while addressing the ‘highly distressing’ situation of a complainant being cross-examined by their alleged attacker.[109] Law reform bodies that have considered this issue in detail have drawn a clear distinction between the right to test the evidence, and any perceived right to conduct cross-examination in any manner or format.

24.83 A related theme can be characterised as the ‘spectre of false complaints’—that is, that false complaints of sexual assault are commonly made. The extent of false complaints of sexual assault is difficult to establish. However, the available evidence suggests that it is small. A Victorian study, which analysed 850 rapes reported to the police over the period 2000–03, found that only 2.1% of reports were designated as false by the police. In these cases, the alleged victim was either charged or told that she would be charged unless she dropped the complaint. While this only represents a fraction of the sample, there was a much larger proportion of cases where police were confident, or reasonably confident, that the allegations were false, but there was no attempt to institute charges against the alleged victim.[110]

24.84 Despite these data, concern about lying and fabrication has been a central feature of the sexual assault trial. Research has indicated that many complainants are asked about lying in cross examination. In the Heroines of Fortitude study, for example, 84% of complainants were asked questions about lying, and one complainant was asked 98 questions about lying in cross examination.[111] In addition, women are questioned about their motives for reporting, seeking revenge, and whether they made a report simply to access victims’ compensation—one-third of complainants in the Heroines study were asked about this.[112]