Professor Marcia Neave, 25 August 2004
- What are the problems?
- Recommendations deal with five main areas
- Recommendations about cultural change
- Recommendations to make it easier for people to give evidence
- Changes to jury directions
- Changes to the rules of evidence
- Changes to some of the offences
A problem cannot be solved until we recognise that it exists. This Report shows that the criminal justice system is seriously flawed in dealing with people who report they have been sexually assaulted. Unfortunately, the problem is often invisible to the people who are familiar with the system, for example police and lawyers. But it is apparent to those who look at the system from outside, to those who have been sexually assaulted, and to those who provide them with counselling and support. Children in particular face very great difficulties in reporting offences and giving evidence at trial.
What are the problems?
- Low reporting rates for rape, partly because of lack of confidence in the process.
- People from some groups face particular barriers to reporting, for example: children, people with a cognitive impairment, people from non-English speaking backgrounds and Indigenous people.
- Low prosecution rates. Only 1 in 7 offences against children that are reported to the police are prosecuted.
- High withdrawal rates, that is, people report an alleged offence to the police and then they decide they cannot go on with it.
- Long delays in taking cases through to conclusion.
- Falling guilty pleas and conviction rates for rape. Only about ¼ of reported rapes result in a conviction. This is a much lower conviction rate than for other types of cases.
- Failure of earlier legal reforms to work as intended, for example although there is legislation allowing people to give their evidence outside the court room by using closed-circuit television (CCTV) this is often not done.
- Children have to repeat their story many times and to be cross-examined on it at least twice, which increases their trauma.
Lawyers and judges who are asked whether they would advise a person who had been sexually assaulted to report the crime often say they would not. Christine Eastwood conducted a study of children who have given evidence in a sexual assault trial and asked them if they were assaulted again would they report it. Except in WA where they already have special procedures for child witnesses, the majority said they would not.
So what do we do about it? The recommendations in our Report are intended to ensure that people who say they have been sexually assaulted are treated sympathetically and fairly. We believe it is possible to do this but at the same time ensure that the people accused of offences get a fair trial. Many of our recommendations are based on changes which have already been made in other parts of Australia.
The recommendations deal with five main areas:
- Bringing about cultural change
- Making it easier for people to give evidence
- Changing jury directions
- Allowing a broader range of evidence to be admitted
- Changing some of the offences
- Dealing with young offenders
I will now explain some of these.
First, the recommendations to bring about cultural change in the criminal justice system. The biggest cultural change would be to accept that there is a problem and try to do things better. While some in the criminal justice system have done so, there is also a lot of denial. This is an area where we need leadership and commitment from police, lawyers and judges. The police have already accepted they need to do things better and have set up a State-wide Steering Committee on Sexual Assault. Some judges and magistrates have also accepted the need for change. The Magistrates’ Court has piloted a specialist list managed by Magistrate Lisa Hannan to deal with committals involving sexual offences against children and this seems to have worked well.
Recommendations about cultural change in the Report include:
- Changes to police processes to keep complainants better informed and to ensure greater consistency in decision making about prosecution.
- Police training.
- Training for prosecutors.
- Judicial education.
- Training for police and a series of recommended changes to police processes.
- A specialist list for child sexual offences in the Magistrates’ Court to reduce delays and ensure sensitive treatment.
- A designated judge in the County Court to handle the listing and management of sexual offence cases involving children and people with a cognitive impairment.
The Report contains a series of recommendations to make it easier for people to give evidence. Complainants, particularly children, find the legal process daunting and traumatic. Often they do not understand legal language and they find it very hard to be questioned about matters of intimate sexual detail. It is even worse when this is done in the presence of the accused. Some of their problems are an inevitable consequence of an adversarial process. Obviously the accused must be able to test the evidence against him. But we believe it is possible to reduce the trauma for complainants and still give the accused a fair trial.
Recommendations to make is easier for people to give evidence include:
- Prohibiting an accused person from personally cross-examining a complainant. In an English case a man charged with rape questioned the woman for several days wearing the same clothes he had worn at the time of the alleged rape. We want to stop that happening here. The court will have power to appoint a lawyer to do the cross-examination.
- Making use of CCTV mandatory except where the judge is satisfied the person wants to give evidence in court.
- Setting up an independent child witness support service such as they have in WA. This provides support to children and parents who are involved in sexual offence proceedings. An independent service could assist children whether they are a witness for or against the accused.
- Pre-recording of children’s evidence. This would be done at a special hearing before a judge, with prosecution and defence lawyers and the accused present. The child gives evidence via CCTV from another room. The evidence is taped and shown at the trial. This hearing will take place more quickly than the trial itself, so that the child’s memory does not fade and the child can then move on with their life.
Changes to jury directions
In the old days judges had to warn juries that the evidence of women and children had to be corroborated, because they were inherently untrustworthy. That law was changed a long time ago but in some cases judges have to give warnings that really reintroduce the corroboration warning by the back door. If there has been a delay between when the offence was alleged to have happened and when it was reported the jury has to be warned that it may be ‘dangerous to convict’ on the uncorroborated evidence of the complainant. The circumstances in which these warnings have to be given have expanded over time. We think that juries hear these warnings as a direction to acquit the accused. We recommend limiting the circumstances in which these warnings must be given and not requiring use of the words ‘dangerous to convict’.
Changes to the rules of evidence
We recommend some changes which will make Victorian evidence laws more like the laws which apply in other states. In particular we propose some changes to allow the admission of hearsay evidence (evidence about what someone else has said). This may be particularly important in cases involving children. Children typically delay in telling anyone about the sexual assault and may then tell someone they trust, like their mother or a school counsellor. We think that the court should be able to allow the jury to hear this evidence from the mother or the counsellor if certain conditions are satisfied.
Changes to some of the offences
We recommend changes to the offences which protect people with cognitive impairment from sexual abuse which recognise that most people live in the community and not in institutions and therefore broaden the people covered by the offences. We also recommend a change to rape law so that a person must take reasonable steps to find out if the person they are having sex with is consenting. If the person they have sex with is asleep or unconscious or in a state of fear the accused will not be able to argue that they honestly believed she was consenting.
Finally, some recommendations about young sexual offenders. Recent research has shown this is a hidden problem. Somewhere between 16% and 20% of sexual offences are committed by young offenders, some of whom are very young indeed. Many of these will go on to commit offences as adults. For a variety of reasons most of these alleged offenders cannot be prosecuted. Here we suggest that there is a need to move beyond the criminal justice model to get these young people into treatment programs so they do not re-offend and to get them to acknowledge the harm they have done.
A large number of people worked on this project. I want particularly to acknowledge the contribution of Nicky Friedman, Angela Langan, and Hilary Little, who did much of the research and writing; Julie Bransden, Lorraine Pitman, and Kathy Karlevski, who oversaw its production; and Padma Raman the CEO of the Commission. I should also thank Alison Hetherington our Communications Officer who has organised our publicity and all of the staff at the Commission who have been involved in organising this launch.
I also want to thank the many people outside the Commission who contributed, including Chief Judge Michael Rozenes and several other County Court Judges, Ian Gray, Chief Magistrate and Lisa Hannan Magistrate, Paul Coghlan the DPP, Kay Robertson the Solicitor for Public Prosecutions, Tony Parsons, the Managing Director of Victoria Legal Aid, Lyn Slade of the Judicial College of Victoria, Assistant Commissioner Leigh Gassner of the Victoria Police and his whole team, Marg D’Arcy Manager of CASA House, Karen Hogan Co-ordinator of the Gatehouse Centre, many other CASA workers and the VOICES group of sexual assault victims who told us about their experiences with the criminal justice process. All these people have accepted there is a problem with the existing system and are committed to resolving it.
Our work will only have succeeded if it makes it easier for people to perform the public service of reporting sexual assault and giving evidence at committal and trial. This will only happen if all the actors in the criminal justice system, the police, the prosecution and defence lawyers and the judiciary accept there is a problem and make a commitment to improving the system. The criminal justice system must protect the rights of the accused. But as Justice Brennan has acknowledged, the criminal justice system must not only be fair to the accused, it must also ensure that the victims of crime can see that justice is done.
Prosecution of sexual offences is difficult for many reasons. Some offenders will inevitably escape conviction. But we will have achieved something if people who perform the public service of giving evidence think that the process is fair to them as well, even if it may not have resulted in a conviction.