In Australia, sexual violence is recognised as a serious crime and an extreme violation of human rights in which the Australian Government has an obligation to exercise ‘due diligence’ in establishing effective measures to prevent, investigate and prosecute such cases of violence.

 

The criminal justice system remains the primary institution for responding to sexual violence offences and over the years there has been increased awareness that survivors/victims experiences of the criminal justice system must improve if they are to pursue and access justice for these crimes. As such, reforms have been made to sexual assault law and policy to redress some of shortcomings of the system to improve the situation of sexual assault survivors in the criminal justice system and to increase the low reporting rates and poor practices that lead to the unnecessary attrition of sexual assault cases.[1]

 

However, despite some advances, research indicates that these reforms have not translated into significant change at an operational level and shortcomings of the system continue to undermine and restrict survivors/victims ability to access protection, redress and justice for these crimes.[2] In many instances, institutional biases against survivors/victims of violence persists and survivors/victims are often re-traumatised and placed at a heightened risk of further violence when seeking protection through the criminal justice process. In addition, reporting rates remain low, attrition rates are high and low conviction rates persist. [3]

 

In response to the limitations of legal reform, Daly (2011) has argued for consideration of a variety of responses to sexual assault within and outside the legal system, ranging from the conventional to the innovative, in order to improve both criminal justice system efficacy and victims/survivors’ experiences following sexual assault. While we agree with Daly’s aim and scope, this issues paper has a more limited intention: to contextualise the challenges for improving victims’/survivors’ experiences and system efficacy, to survey specific issues already identified by advocates and for which reform or policy options are fairly well-developed, and to update readers on recent developments.

 

This document builds on AWAVA’s work on access to justice and deals mainly with sexual assaults involving adults (not children). It is recognised, however, that sexual abuse of children is a related but distinct topic requiring sensitive, well-informed attention from services and policy-makers. It is also acknowledged that human trafficking into the sex industry constitutes a form of sexual violence and that access to justice for survivors/victims of trafficking is extremely limited. Although relevant to the matters discussed here, the specific legal and social issues involved in human trafficking are largely beyond the scope of this paper.

 

The paper is structured as follows: first, the paper surveys background issues relating to sexual assault and the limitations of the criminal justice system, before identifying the reasons for limited reporting to formal authorities. Following this the paper discusses data and reporting mechanisms, and makes some proposal for improvements. The paper then turns to specific reforms that could improve the justice system in relation to sexual assault, focusing on the protection of sexual assault communications, presumption of joint trial, and judicial training. The paper concludes with sections discussing the justice needs of particular groups of people and in particular settings, highlighting recommendations relating to Aboriginal and Torres Strait Islander women, women with disability, people in migration detention, sexual assault and harassment at university, and technology facilitated abuse and online safety.

 

Download the full issues paper here  

 


 

[1] Clark, H. (2010) ‘What is the criminal justice system willing to offer?’ Understanding sexual assault victim/survivors’ criminal justice needs’, Family Matters 58, pp. 28–37; Daly, K (2011) ‘Conventional and innovative justice responses to sexual violence’, ACSSA Issues 12, [Australian Centre for the Study of Sexual Assault] https://aifs.gov.au/publications/conventional-and-innovative-justice-responses-sexual-violence

[2] Australian Law Reform Commission [ALRC] (2010) Family Violence – A National Legal Response (ALRC Report 114) http://www.alrc.gov.au/publications/family-violence-national-legal-response-alrc-report-114

[3] Daly, K. and Bouhours, B. (2010) ‘Rape and Attrition in Legal Process: A Comparative Analysis of five countries’, Crime and Justice 39(1), pp. 565–650.