Improving the Justice System Response to Sexual Offences: Report (html)

Executive summary

1 This report recommends ways to improve how the justice system responds to sexual offences.

2 The system needs to change, so that:

• using it is straightforward and not traumatic for people who experience sexual violence

• the criminal justice system holds people responsible for sexual violence to account

• victim survivors have choices and support when seeking justice for sexual violence.

Why does the justice system need to change?

3 Sexual violence is widespread. It causes serious, long-term harm. But most sexual violence is not reported to the police. Many people do not report because they think that they will not be believed, or they do not want to go through a criminal trial.

4 Most reports of sexual violence do not make it to court. Cases that do go to court mostly end up with someone being convicted, either by pleading guilty or being found guilty. But only about half of the trials in higher courts (the County Court and the Supreme Court) end with someone being found guilty, a rate lower than for most other offences.

5 Too often, people who have experienced sexual violence do not get what they need or want from the justice system. They need to be supported; to be heard; to have a voice; and to see the person responsible held to account. Instead, the justice system often leaves them feeling alone, invisible, and as if they are the ones on trial.

6 Positive changes have been made by governments and people working in the justice system. But this important work is far from over, and much more needs to be done.

How should the justice system change?

Change starts in the community

7 We need to build a community that understands sexual violence and supports people who experience it.

8 People still do not talk openly about sexual violence. They do not always know it is a crime, or how to reach out for support or to find justice. When a person discloses sexual violence, they do not always get a supportive response. These things are barriers to justice.

9 The Victorian Government should invest in ongoing public education about sexual violence.

10 Stopping sexual violence should become ‘everyone’s business.’ Organisations like clubs and schools, and employers, should have stronger obligations to do what they can to eliminate sexual violence and harassment.

The system needs to change

11 The ‘system’ for responding to sexual violence is under strain. Victim support services, police, and lawyers are overworked and under-resourced. The courts have serious backlogs.

12 The first and most urgent thing the Victorian Government should do is invest in the system.

13 Everyone in the system needs to work together with a shared idea of what they are trying to achieve. This would help to create a system that is straightforward to use and effective.

14 The Victorian Government should create a governance structure that supports everyone to work together effectively.

15 A multi-agency protocol should set out how everyone in the system works together. The protocol should be clear about who is responsible for what, and how to give feedback to improve the system. It should set out how to connect victim survivors to support services.

16 People who work in the system should be accountable, and report to parliament on their compliance with the protocol. Victims of sexual offences should have specific rights in the Victims’ Charter Act 2006 (Vic) and the Victims of Crime Commissioner should make sure these rights are respected.

17 Good models of working together should be expanded. Multi-disciplinary centres are an example, bringing together sexual assault services, police, and Child Protection.

18 The Victorian Government should strengthen joint responses to child sexual abuse, including a strong partnership between Victoria Police and Child Protection.

Research and data are a priority

19 We need to understand the contexts and patterns of sexual violence, why people commit sexual violence, and how to change their behaviour. We need to evaluate what works, to help design better responses to sexual violence. Gaining this knowledge and sharing it should be a goal of the Sexual Assault Strategy the Victorian Government is developing.

20 To improve the criminal justice system, we need better data on what is working and what needs fixing. To achieve this, the way data is collected, used, and published should be improved. An annual report on key criminal justice data should be published, and the impact of reforms measured. The Victorian Government should fund the Crime Statistics Agency to publish regular studies on the progress of cases through the criminal justice system.

Reporting needs to be easier

21 Not everyone wants to report sexual violence, but everyone should know their support, reporting, and justice options. It should be as easy as possible to contact police and support services.

22 The Victorian Government should set up a user-friendly website that explains what support is available, how to report, and what happens if a person does report. It should explain all the options, including financial assistance and restorative justice.

23 This website should be a gateway to support services, with options to connect with support services online or by phone.

24 There are not enough ways to contact police. People should be able to make contact with police online, making it easier to report sexual violence.

Everyone should have access to support and reporting options

25 Everyone should have access to support and reporting options, wherever they live. People living in institutional contexts face unique barriers to reporting. Staff and carers may not know how to respond to disclosures.

26 Many inquiries have made recommendations to reduce sexual violence in institutional contexts and break down barriers to reporting. This work must continue. Regulators should support this work by implementing good practices in their different institutional contexts.

27 The needs of women in prison should also be addressed in the Sexual Assault Strategy. They are likely to have experienced sexual violence. The strategy should also prioritise the experiences and needs of children and young people in contact with the justice system who have experienced sexual violence.

28 Some people and communities do not trust the justice system or see it as a source of support. This must be addressed so that all communities have access to support, reporting and justice options.

29 The Victorian Government should support familiar and trusted community organisations to provide people with safe spaces to disclose sexual violence and access to information, support and reporting options. Many community organisations are already playing this role, but it should be strengthened, and they should collaborate with specialist sexual assault services.

30 Specialist sexual offences police (SOCITs) should build relationships with the community in their regions. They should work with community organisations and services to develop new pathways to reporting.

31 An Aboriginal sexual assault service is needed. It would provide a culturally safe and appropriate service for Aboriginal people who have experienced sexual violence. The current pilot programs can be developed into a permanent service model that responds to the different needs of Aboriginal women, children and men.

32 The Victorian Government should strengthen the support available to children and young people who use harmful sexual behaviour. Early intervention programs and support services are needed.

Justice options should be expanded and strengthened

33 People have different justice needs. They include needs for emotional and practical support. To respond to these needs, the range of justice options should be expanded and strengthened.

34 The time has come for restorative justice in Victoria.

35 Restorative justice enables people affected by a crime, including the person responsible (where appropriate), to communicate about the damage and work together to repair it. Restorative justice should be an additional justice option for victim survivors alongside the criminal justice system.

36 The Victorian Government should set up a restorative justice scheme for criminal offences, with guiding principles for sexual violence so that the restorative justice process is done safely and well.

37 Civil litigation can provide victim survivors with compensation, acknowledgement and a sense of control. But it can be hard to get legal representation to sue an individual for sexual violence.

38 In cases with individual defendants, the Victorian Government should fund civil cases that raise important legal or systemic issues, or where the person who experienced sexual violence faces unique barriers to justice. The Victorian Government should also, on request, enforce civil orders and settlements.

39 Financial assistance and ‘truth telling’ can meet justice needs for victim survivors. They can acknowledge the harm done and validate their experience.

40 We recommend strengthening financial assistance and truth telling as justice options. The time limit for making applications should be removed. There should be a specialist stream run by respected decision makers with sexual violence expertise. Decision makers should ensure ‘recovery payments’ are enough to recognise the negative impacts of sexual violence.

41 Too often, people who have experienced sexual violence are left alone to navigate a complex and frightening system. Victim survivors told us they need strong, continuous support.

42 Victoria has the foundation of a strong support system, but accessing specialist services is still too hard. More investment is needed to strengthen the services we have.

43 There are gaps in meeting immediate needs—basic things like getting a taxi to hospital after experiencing sexual violence. The Victorian Government should make flexible support packages available to people who have experienced sexual violence.

44 Victim advocates should be funded to ‘walk with’ people who have experienced sexual violence. They should provide holistic support, ranging from helping victim survivors navigate services to supporting them through the justice system. The support should cover the whole experience of the criminal justice system—before, during and beyond.

45 People who have experienced sexual violence need legal advice and representation. The new Victims’ Legal Service should provide this, up to the point of trial if needed.

Stop the violence before it starts

46 Previous reforms have focused on victim survivors and the criminal justice system. There is an increasing focus on perpetrator interventions in cases of family and sexual violence. An ideal response would stop sexual violence before it happens, or prevent it continuing.

47 As part of the Sexual Assault Strategy, the Victorian Government should develop a coordinated approach to preventing sexual offending. The focus should be on early intervention programs. Strong reintegration programs should support people who have committed sexual offences to return to the community.

48 The Victorian Government should adopt recommendations from our Sex Offenders Registration report.

Victoria should move to a strong ‘affirmative consent’ model

49 Lack of consent is a key element of rape and other sexual offences. The definition of consent should be reviewed, along with the question of whether a person’s belief in consent is reasonable. There should be a higher bar set for finding out if the other person is consenting to sex. Victoria should move to a strong model of affirmative consent.

50 It is a crime to remove a device such as a condom without consent, and this needs to be made clear in the definition of consent. This would help people identify it as criminal and report it.

51 Image-based sexual abuse is a growing problem that causes serious harm. Victoria’s laws need to recognise its seriousness. Image-based sexual offences should be indictable crimes triable summarily.

52 Safeguards should be built into the system so that children and young people are not overcriminalised.

53 The investigation of image-based sexual abuse offences should be handled by police who specialise in sexual offences (SOCITs). Complainants in these cases should have the same protections as complainants for other sexual offences.

54 The sexual offence laws reformed in 2015 need to explain how those offences apply in cases before the reformed offences commenced (‘transitional provisions’). The current situation causes major practical problems in prosecuting sexual offences, such as charges not being filed.

55 Past recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse should be implemented. This would make it easier to prosecute repeated and systematic child sexual abuse.

The criminal justice system should support everyone

56 When a victim survivor reports a crime and appears in court, they should be heard and understood. People accused of sexual offences should be able to understand the charges and evidence against them, and how the criminal justice system works.

57 Intermediaries provide valuable support to children and people with communication difficulties. More people should be able to access them. Intermediaries should be available to anyone with communication difficulties, including the accused. They should be available in all venues of the County Court of Victoria.

58 Independent third persons provide valuable support in police interviews to people with cognitive disabilities. This service should have enough funding, connect people to other services, and be promoted.

59 Language services are especially important in the context of sexual violence. Sexual violence affects people who need language services more than others. Funding for language services should be increased. Investing in specialised training is a priority.

Focus on the ‘front end’ of the criminal justice system

60 Forensic medical examinations can improve evidence in criminal prosecutions. There is an urgent need to invest in access to forensic medical examinations, especially in rural and regional areas, and for children and young people.

61 To give victim survivors more choices and control, they should be able to specify the gender of their forensic medical examiner. There should be more access to ‘just in case’ forensic medical examinations, which do not require reporting to police.

62 Before reporting sexual violence, victim survivors need to feel confident that police will respond appropriately to their diverse needs and experiences. This requires immediate attention, including training. Victoria Police should continue to gain ‘communication access’ accreditation.

63 The responses of police and prosecutors to sexual violence have improved, but more can be done. Good practice should be embedded in the multi-agency protocol we recommend. There should be new rights in the Victims’ Charter Act, including the right to specify the gender of the police interviewer and to have flexible interview arrangements.

64 There should be a focus on improving the quality of police interviews with children and young people.

65 There is a need to understand why sexual violence cases do not progress. There should be independence and accountability in decision making by police and the prosecution. The Victorian Government should establish an independent, multi-disciplinary panel to review and make recommendations about police and prosecution decisions.

People working in the criminal justice system should have specialist skills

66 Sexual offences is a complex area to work in. To handle these matters well, people working in the criminal justice system need to understand sexual violence. They also need to understand complex laws and procedures.

67 Past reforms have helped develop the specialist knowledge and skills needed to respond to sexual violence. But good practice still does not happen across the board.

68 We need to create a specialised criminal justice workforce.

69 This specialised approach should build on the elements that have improved responses in specialist sexual offence courts.

70 Lawyers appearing in sexual offence cases should be encouraged to have specialist accreditation. Fees should be increased so that this complex work attracts skilled lawyers who have accreditation. Judges and magistrates should complete well-rounded and ongoing education and training courses.

71 In making judicial appointments, the Victorian Attorney-General should consider the potential appointees’ aptitude for hearing sexual offence cases.

Criminal trials should be improved

72 Key features of our criminal justice system make it hard for sexual offences to be proved in court, and hard for complainants to go through the process.

73 There have been decades of reform to address these issues, including the issue of delay. Other key reforms, such as to tendency and coincidence evidence, are still in progress.

74 The Victorian Government should implement recommendations from our Committals report to reduce delay and trauma to victim survivors.

75 Tendency and coincidence evidence can play a central role in sexual offence trials, especially those involving child sexual abuse. Reforms to tendency and coincidence evidence should be evaluated.

76 We acknowledge concerns about appeals. They may have negative impacts, such as drawing out the process for those involved. We recommend a review of appeals.

77 Juries in sexual offence trials may have misconceptions about sexual violence. This may affect how they assess the evidence. Sexual offence trials are complex, making a juror’s job of assessing the evidence in line with the law a difficult one.

78 We recommend more jury directions, greater use of independent experts and more effective communication with the jury. This should include guidance in every sexual offence trial on the meaning of ‘beyond reasonable doubt’, given how crucial the question is to verdicts in these trials.

79 The Victorian Government should invest in ongoing research on juries in sexual offence trials.

80 Although there has been a shift towards a respectful courtroom culture, trials are often still traumatic for complainants. There should be a focus on creating a respectful environment and getting the most relevant and clear evidence from complainants.

81 To shift courtroom culture, the parameters of cross-examination and respectful treatment of the complainant should be considered carefully. This should be part of the planning for every sexual offence committal or trial.

82 Arrangements for taking evidence should be flexible and include pre-recorded evidence. There should be changes to court design and arrangements to make sure complainants feel safe and able to present their best evidence.

83 Complainants’ rights to privacy need to be protected. They need to know if the defence wants to introduce evidence about their confidential communications with a medical practitioner or counsellor, or their sexual history. They need to be given legal advice and representation to protect those rights and have a say in decisions.

Future reforms need a systems-wide approach to implementation

84 The recommendations in this report need to be implemented effectively. We recommend monitoring and an annual report on implementation progress.

85 A new Commission for Sexual Safety should be established. Its functions should span prevention, education, and the way services and the justice system respond to sexual violence. It should bring a ‘systems-wide’ view to implementing the recommendations in this report. It would lead the changes we want to see in responding to sexual violence.