The justice gap that punishes sexual assault victims twice

The Victorian Government is undertaking a review of sexual offences legislation which is a good thing. The current sexual offence laws are extremely complicated, inconsistent and lacking in clarity making them all but impossible to be understood by a jury. As the Department of Justice states in its consultation paper "nowhere is this problem worse than with the offence of rape".

The Australian Bureau of Statistics Personal Safety Survey 2012 shows that 19% of women and 4.5% of men report have experienced sexual violence since the age of 15. A paper recently published in The Lancet medical journal staggeringly identifies the rates of sexual assault against women in Australia and New Zealand as some of the highest in the world.

We also know that more than 70% of sexual assault incidents in Australia will not be reported to the police and that of those reported only one in ten will result in a guilty verdict. What these statistics highlight is a profound justice gap for those who experience sexual assault. Legislative reform alone is not enough to reduce this gap.

There are many reasons why victims of sexual assault do not report their experiences. Not the least of these is that most perpetrators of sexual assault are known to their victim. Sexual assault is a crime which occurs predominantly behind closed doors, commonly within the home, with no witnesses other than the victim. The knowledge that the victim will be subjected to traumatic and intimate interrogation of the crime, and of their personal life, coupled with the low rate of convictions, only reinforce the difficulties faced by any victim who chooses the path of reporting.

The decision to report an incident of this nature is complicated by the many myths and stereotypes that continue to dominate public perceptions of sexual assault. It is not surprising that jurors, who are of course chosen from the community, and court personnel, commonly take a range of assumptions and beliefs about rape with them into a court room.

Uninformed beliefs that rape victims are not 'credible witnesses' or that false accusations of rape are common, influence jurors' decisions. Misconceptions about what comprises consent mean that victims are judged on irrelevant issues such as what they were wearing at the time, or, how much alcohol they, or indeed even the perpetrator, had consumed. These myths and stereotypes seriously impair any chance of justice.

At Women's Health East we support women to speak out about their experiences of sexual assault and the justice system. As one of our advocates says: "To try to find the words to report rape is not only incredibly difficult, it is very risky. To speak up in spite of a culture that continues to blame women for their victimisation, to refuse to be shamed and instead shame your attacker takes even more courage."

Rape is a crime about power and control. The causes lie in inequalities of power in our community – predominantly those between men and women. Ingrained stereotypes about masculinity and femininity define what is considered acceptable behaviour for men and women: they serve to enable men's violence against women. Cruelly these same inequalities and stereotypes play out in the court room and present major barriers to a fair trial.

What all this means is that whilst a review of the legislation is important, particularly to strengthen our laws regarding consent, it is not enough. Broader reforms that address the whole of society including the people who take on the role of jurors, judges and legal personnel, are required.

One reform worthy of consideration is specialist sexual assault courts. This involves the creation of courts staffed by judges and legal personnel who are trained to be experts in understanding the causes, impacts and community misconceptions about sexual assault. These specialist courts would ensure mandatory education of jurors and use of expert witnesses to counterbalance the effect of assumptions and beliefs jurors bring with them into the court room. Through these measures, the justice system may make significant steps toward providing a fairer system for both accused and complainant.

If we are to have any impact on the appalling rates of sexual violence in our society, it is essential that law reform be accompanied by broader social measures that foster gender equity, challenge gender stereotypes, and dispel misunderstandings about rape and its causes.

Gender equality is justice for men and for women. It entails fair and equal treatment regardless of gender identity. When gender equality is what we see reflected all around us – through the media, through our politicians and leaders, through our workplaces and through our own personal relationships, then not only will sexual violence be responded to effectively and justly by our legal system but it will be a far less frequent crime.
This may sound like a big ask but it is by no means impossible. It is, however, an ask that requires the whole of our community to act in addition to strong and sustained leadership from all levels of government.

If you are experiencing violence and need advice or support please contact:
· In emergency situations or immediate danger contact Police on 000
· For confidential help and referral in Australia call the National Sexual Assault, Family & Domestic Violence Counselling Line on 1800 RESPECT (1800 737 732)
· Children/young people needing help should call Kids Helpline on 1800 55 1800

Kristine Olaris & Kate Ravenscroft

Kristine Olaris is the Chief Executive Officer of Women's Health East.

Kate Ravenscroft coordinates the Eastern Media Advocacy Program at Women's Health East which supports women who have experienced sexual assault and/or family violence to speak out in the media.

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