Improving the Response of the Justice System to Sexual Offences: Terms of Reference

Referral to the Victorian Law Reform Commission pursuant to section 5(1 )(a) of the Victorian Law Reform Commission Act 2000.

The Victorian Law Reform Commission (VLRC) is asked to review and report on Victoria’s laws relating to rape, sexual assault and associated adult and child sexual offences (sexual offences). The review should identify opportunities to embed and build upon previous reforms, identify the barriers to reporting and resolving sexual offences, and make recommendations to improve the justice system’s response.

In undertaking this review, the VLRC should consider legislation, policy and other factors including:

• The impact of the changes that have been implemented since the VLRC last reported on Sexual Offences (2004), Evidence (2006), Jury Directions (2009) and Victims of Crime in the Criminal Trial Process (2016).
• Best practice approaches in other Australian and international jurisdictions for responding to sexual offences, with a view to identifying further opportunities for improvement in Victoria.
• The Victorian Royal Commission into Family Violence Report (2016) in so far as it relates to sexual offences within intimate partner relationships.
• The impact, if any, of technological advancements on the nature of sexual offending.
• Data and trends around the reporting of sexual offences, investigations, prosecution and conviction rates across Victoria, and any opportunities to improve data collection and reporting practices.
• Actual or perceived barriers which contribute to the low reporting of sexual offences, and the high attrition throughout the formal legal process of those who do report, including:

 o Reasons why victim survivors of sexual offences may choose not to report the event to Police, or pursue a formal complaint;

 o Reasons why complaints that are reported do not progress to charges;

 o Reasons why charges do not proceed to trial; and

 o Reasons why convictions may be difficult to achieve.

• Whether Australian or international best practice suggests opportunities to address these real or perceived barriers, including through consideration of alternative mechanisms or processes to receive and resolve sexual offence complaints that are consistent with victim survivors’ interests and the interests of justice.
• The process and procedure for reporting, investigating and prosecuting sexual offences, and whether there are alternative models which would improve the resolution sexual offences for victim survivors.
• The effectiveness of the 2014 reforms to the elements of sexual offences.
• The application of sexual offences to children.
• Whether the rules for giving evidence, directions given to juries and the time taken to resolve cases are meeting public expectations, and how this affects complainants.
• How criminal prosecutions for sexual offences may interact with processes outside the system for resolving complaints, such as workplace or educational institution investigations, and in particular the findings of the Australian Human Rights Commission in its National Workplace Sexual Harassment Inquiry.
• Best practice for supporting sexual offence complainants and witnesses in the justice system more broadly, including:

 o How complainants give evidence in other contexts including in civil proceedings such as defamation and civil claims against institutions; and

 o Any other matter that the VLRC considers necessary to reduce the trauma experienced by complainants and improve efficiency in the criminal justice system, while also ensuring fair trial rights.

The VLRC is asked to recommend any changes which could further reduce the trauma experienced by complainants and witnesses and improve the ability of the justice system to respond to sexual offences. In making such recommendations, the VLRC should also be cognisant of the need to uphold procedural fairness and other fundamental rights for accused people, consistent with the Charter of Human Rights and Responsibilities Act 2006.

The VLRC is asked to provide its final report to the Attorney-General by 31 August 2021.