The law and sexual offences against adults in Australia

ACSSA Issues No. 4 – June 2005

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After thirty years of reform, the evaluations discussed in this issues paper suggest success has been partial at best (Heenan and McKelvie 1997; Stubbs 2003; VLRC 2004).

The cost to people who experience sexual assault is clear. The very systems that Australia has implemented to respond to criminal conduct are still judged inappropriate or unusable by many people who are sexually assaulted yet never report their experiences to the police (Cook 2001; Lievore 2003). Those who do use the criminal justice system continue to find it traumatising, humiliating and distressing (VLRC 2004; Taylor 2004). The process does not adequately recognise and respect the community service that complainant witnesses provide in reporting offences and participating in trials (VLRC 2004). Compliance with evidence laws designed to provide safeguards for complainant witnesses have achieved limited compliance. Conviction rates remain low. Yet the cost to the broader society is also substantial.

"Criminal procedures that discourage reporting or which stigmatise and traumatise witnesses in sexual assault cases may result in some offenders escaping apprehension, which may put more members of the community at risk" (VLRC 2004: 81). While only a fraction of the total number of sexual offences being committed enter the criminal justice system and even that tiny fraction are responded to inadequately, strong messages are communicated to Australian society. Clearly these messages cannot be left unchallenged.

Legal change is not the only way of addressing sexual assault, and it may not be the most important strategy (Stubbs 2003). However, so long as the criminal justice system remains a critical response to serious crime, access to justice through that system for people who are sexually assaulted is essential.

The lack of success of rape law reforms in Australia and internationally has been attributed to a range of sources, including failure to implement adequately funded, systematic and thoroughgoing reform (Kift 2003). Some commentators argue that rape law reforms have so far fallen short of producing the "revolution in thinking that the research data so clearly calls for" (Cook 1999: 1871).

However, in assessing the legacy of thirty years of rape law reform in Australia, it is important not to forget how far legal change has come nor to ignore how much more change is needed. The last thirty years have seen dramatic, innovative changes to law and legal practice in relation to sexual offences, including major modifications to every element of the offences and to relevant aspects of the law of evidence. There is also evidence of significant cultural change through this period (Crime and Misconduct Commission 2003).

Nevertheless, so long as the legal system continues to be a source of re-traumatisation rather than redress, efforts to change the shape and implementation of the law will be necessary. The existing range of legislation of the Australian states and territories forms a rich resource in working toward creating the revolution in legal thinking that may still be required.