Sexual Assault Pt II

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This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 723-30; 742-45.

The Trial and Proving Lack of Consent

[1] Proof of lack of consent (as part of the actus reus of rape) was made more difficult:

  • by the judicial warning that it is dangerous to convict on the uncorroborated evidence of the complainant,
  • the direction that delay in complaint may be taken into account in determining whether to believe the complainant,
  • and the scope provided for vigorous cross-examination of the complainant as to previous sexual reputation and experience.

Even without the operation of these doctrines it also difficult because:

  • It usually involves events which took place in private and where the only direct evidence is the word of the complainant as against the word of the accused.
  • The persistence of notions of false accusation, fantasy and hysteria.

These issues are further discussed by S Edwards in Female Sexuality and the Law (1987):

  • Apart from commonly held views, respected legal and medical professionals were influential in propagating views questioning legitimacy of women’s allegations of rape.
  • Some opinions included that:
    • Women were hysterical and liars.
    • The menstrual condition in women gave rise to unjust complaints regarding seduction and rape.
    • Chastity may have a direct connection with truthfulness.
    • False accusations were made out of spite, malice and revenge by unchaste women, virgins and young girls.
    • Rape is impossible. “If it were not for the fact that rape can take place from fear, the problem might be fairly easily to solve, for a fully conscious woman of normal physique should not be able to have her legs separated by one man against her will.”
    • Allegations of rape against doctors and dentists were because some women experienced erotic dreams during anaesthesia.
  • Attitudes to the rape complainant have not changed that much since 1800. “Issues of false accusation, female masochism and female sexual fantasy have become so readily assimilated into legal practice that they often go unnoticed.”

Statutory reforms

[2] The 1981 reforms in NSW had the broad objective of reducing the trauma of the trial for the victim and abolishing some of the more offensive legal doctrines which promoted myths about rape. Some important provisions are:

  • Removing the common law direction that 'delay in complaint may be relevant to veracity.[3]
  • Abolishing the warning of conviction on uncorroborated evidence.[4]
  • The introduction of the rape shield, prohibiting admission of evidence relating to sexual experience and reputation.[5]
  • Removing the sexual assault communications privilege, limiting defence access to records of the complainant’s counselling treatment.[6]
  • The complainant cannot be cross-examined or re-examined by the accused when unrepresented but may be examined by a person appointed by the court – following the trial of five young men for a series of sexual assaults in company.[7]
  • Alternative arrangements for the complaint’s evidence to entitle them to give it from a place other than the court room by means of closed circuit television or other technology.[8]
  • Evidence on retrial may be given by recordings, including transcripts – in response to successful appeals against conviction by Bilal and Mohammed Skaf on a number of sexual assault charges in company.

The prosecution of sexual assault

[9] All Australian jurisdictions have introduced significant reforms to sexual assault law over the past two decades. The extent to which these reforms have reduced the trauma experienced by the victim and increased the likelihood of conviction in appropriate circumstances is disappointing.

Carmody and Carrington concluded that “encouraging the victims of sexual assault to seek redress through the legal process is more likely to enhance their harm, than deter or punish sex-offenders".[10]

See textbook pp 728-30 for statistics and referral to theory sources.

Child Sexual Assault

Prosecution

[11] Judy Cashmore examined the problems associated with prosecution of child sexual assault in a study of cases reported to the NSW DPP in 1991-92.[12] She noted:

  • From the early 1980s, the number of allegations of child sexual assault investigated increased dramatically.
  • The marked increase in the number of reported and substantiated cases was probably the result of growing community awareness of child sexual assault, the introduction of mandatory notification for various professional groups and an increase in resources for investigation.
  • Only a small portion of confirmed cases are prosecuted, but the number has multiplied.
  • There is some concern that increased numbers of children are now subject to the stresses of testifying, with the delays and problems inherent in an adversarial process heavily dependent on oral evidence. Furthermore, there is now a decreased chance of conviction at the end of the process.
  • Reforms and changes in procedure such as closing the court, allowing support persons to be present and using screens and closed-circuit television were intended to reduce the stress of testifying for children, however, their use still depends on judicial discretion.
  • Cashmore is pessimistic about the success of the reforms and the ability of the system to cater for victims and offenders of child sexual assault.

Special child sexual assault courts were established as a pilot in Sydney West District Court Registry in 2003 to address some of the problems in prosecuting and to improve the experience of child complainants.

  • Objectives included trying to reduce delays, improving the environment of the court, using special innovative measures to assist children in giving evidence and increasing the skills of legal professionals involved in the court process.
  • An evaluation of the program found that its success was very limited.

Conclusions

[13] Research reports and inquires on child sexual assaults (overwhelmingly the victimisation of young girls by adult male relatives) suggest that it is unexceptional behaviour and is not defined to an identifiable minority of deviant individuals.

  • This raises questions about the more systematic, institutional and cultural process through which such behaviour is sustained, legitimated and rationalised.
  • Discussions of services for victims tend to focus on emergency services and services related to fairly directly to the status of the victim but it is important to link these with more general social services – housing, financial benefits, and so on, which would facilitate the escape of people from abusive families.

P Parkinson et al, in “The Process of Attrition in Child Sexual Assault Cases: A Case Flow Analysis of Criminal Investigations and Prosecutions” conclude that:[14]

  • The cases which reach trial are those which survive a long process of attrition.
  • Child protection practice should not proceed down on the assumption that all cases of child sexual assault will proceed down the path of criminal prosecution.
  • Non-legal strategies are needed. E.g. Diversion programs which allow offenders who have committed a sex offence against their own child or the child of their spouse or de facto partner to enter a treatment program as long as they are assessed as suitable for the program and plead guilty.
  • Treatment can be mandated for under 14s who exhibit sexually by the Children’s Court and can be treated as a welfare issue.
  • Reliance cannot be placed on the police and the criminal process to determine the issue of whether a person is suitable to work with children.

End

This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 723-5.
  2. Textbook, pp. 725-7.
  3. Criminal Procedure Act 1986 (NSW), s 294.
  4. Evidence Act 1995 (NSW), s 164.
  5. Criminal Procedure Act 1986 (NSW), s 293.
  6. Criminal Procedure Act 1986 (NSW), s 297.
  7. Criminal Procedure Act 1986 (NSW), s 294A.
  8. Criminal Procedure Act 1986 (NSW), s 294B.
  9. Textbook, pp. 727-30.
  10. M Carmody and K Carrington “Preventing Sexual Violence?” (2000) 33 ANZ J of Criminol.
  11. Textbook, pp. 742-3.
  12. The Prosecution of Child Sexual Assault: A Survey of NSW DPP Solicitors” (1995) 28(1) ANZ J of Criminol 32 at 48-51.
  13. Textbook, pp. 743-5.
  14. (2002) 35(3) ANZ J of Criminol 347.
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