The law and sexual offences against adults in Australia

ACSSA Issues No. 4 – June 2005

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Alternative Models of Justice

Given current low reporting and conviction rates, there are obvious limits on the capacity of "law and legal reform to address effectively certain kinds of interpersonal crime, especially sexual assault" (Daly, Curtis-Fawley, Bouhours, Weber and Scholl 2003). As a result, some people working for change have begun to explore alternative models for justice and healing outside the criminal justice system.

In particular, "restorative justice" approaches are being examined for their applicability to sexual assault and domestic violence. These approaches bring together people who have been affected by criminal activity and aim to achieve a reintegration of the offender into the broader community. Restorative justice processes take a large number of forms with widely varying relationships to usual criminal justice processes (Stubbs 2004). Evaluation of family conferencing of sexual offences committed by young people in South Australia has shown that while a substantial proportion of offenders whose cases go to court are never held responsible for their conduct, family conferencing may produce better outcomes for victim-complainants. In order to enter the family conferencing program, offenders must admit the offence, although at least half of the cases going to trial result in all charges being withdrawn or dismissed. Family conferences produced outcomes far more quickly. They resulted in more apologies to victim-complainants as well as more undertakings to do community service and more undertakings to participate in therapeutic counselling from offenders than court processes. By contrast, the few custodial sentences imposed in court were almost all suspended. (Daly et al. 2003; Daly 2004).

However, some authors and community members have real concerns about the appropriateness of restorative approaches in dealing with sexual offences, and with domestic and family violence (and with experiences of both which is often the case when the perpetrator is a partner or family member) (Stubbs 2004). In particular, critics question whether restorative justice approaches are able to adequately address power imbalances, deal with crimes in which there may not be community consensus condemning the offender's behaviour, provide safety for victim-complainants and address the complexities of domestic violence (Stubbs 2004). Although the shortcomings of formal legal processes are documented, much less evidence is available about the capacity of restorative justice strategies to achieve safety, justice and future non-offending (Stubbs 2004). While appropriate restorative justice processes may provide a valuable alternative choice within the context of the criminal justice system, the current failures of the criminal law still need to be effectively addressed.

While appropriate restorative justice processes may provide a valuable alternative choice within the context of the criminal justice system, the current failures of the criminal law still need to be effectively addressed.

In Australia, most criminal offences, including sexual offences, are dealt with under state and territory law. This means that the law relating to sexual offences is different in each state and territory, although some jurisdictions have similar legislation. Consequently, each section of the paper deals with the similarities and differences between the states and territories. Information on evaluations of the law is provided where it has been undertaken in each jurisdiction. There is also a detailed Table at the end of this paper (pp. 32-41) outlining the specific laws and provisions that operate in each state and territory.