The law and sexual offences against adults in Australia

ACSSA Issues No. 4 – June 2005

Reporting and conviction rates

Australian research suggests that one in five Australian women and one in twenty Australian men over the age of 18 have been "forced or frightened into unwanted sexual activity" across their lifetimes, many of them having experienced coercion when aged under 16 years (de Visser, Smith, Rissel, Richters and Grulich 2003: 200). 1 However, very few of these experiences reach the criminal justice system. National and international research suggests that 15 per cent or less of these offences are reported to the police (McLennan 1996; Cook, David and Grant 2001; de Visser et al. 2003; Lievore 2003).

A high proportion of sexual assaults against women are perpetrated by male intimate partners (Heenan 2004a; VLRC 2003). Indeed research undertaken on behalf of the Victorian Health Promotion Foundation (2004) has found that domestic violence is among the top five risk factors for ill health and premature death among Australian women (see also Access Economics on behalf of the Office of the Status of Women 2004). However, women are more likely to report sexual assaults by strangers than by people they know, in particular, current sexual partners (Cook et al. 2001).

Many women who are sexually assaulted by their partners view the assault as a private issue and see police involvement as inappropriate (Lievore 2003). The criminal justice system responds least effectively to sexual offences committed against women by their male partners (Radford and Stanko 1996; Cook 1999; Heenan 2004a). Recent Victorian research shows that while specialist police dealing with sexual assaults are less likely to accept myths about rape, a substantial proportion of non-specialist police officers believe that a high proportion of rape allegations are false, and that victim-complainants often withdraw complaints of rape against intimate partners because they are false (VLRC 2004).

Some writers have suggested that the reasons people give for not reporting sexual assaults are based in societal myths about sexual assault, but these same myths also seem to be at work within the criminal justice system itself (Doyle and Barbato 1999; Cook et al. 2001; Stubbs 2004). Although feminists have spent decades debunking the myth of the "real rape" as one involving a violent attack by a stranger and the myth of the lying, vindictive sexual offence complainant, the ongoing influence of these inaccurate stereotypes is reflected both in decisions about whether to report sexual offences and in statistics relating to court outcomes (Stubbs 2004).

In the wake of rape law reforms, while police responsiveness and sensitivity is widely believed to have improved, charge and conviction rates in some Englishspeaking jurisdictions have actually decreased over the last ten to twenty years.

While few sexual assaults involve weapons or physical injuries in addition to sexual penetration itself, assaults involving additional physical injuries or weapons are more likely to be reported; they are also more likely to result in convictions (Cook et al. 2001). Indeed, the use of physical force has been found to improve substantially the chance of conviction (Edwards and Heenan 1994; Brereton 1994; Naffine 1994; Brereton 1997b; Heenan and McKelvie 1997; Cook et al. 2001: 37; VLRC 2003: 320-321). Sexual offences have very high rates of "not guilty" pleas. If the accused makes admissions of guilt to the police, a conviction is more likely (Heenan and McKelvie 1997; Cook et al. 2001; Briody 2002).

Levels of reporting vary dramatically across socio-demographic groups within the Australian population (Lievore 2003). Parts of the population who experience disproportionately high rates of sexual assaults, such as Indigenous women, people with cognitive impairments, and prisoners, often also experience multiple barriers to reporting offences against them (Cossins 2003; Lievore 2003; VLRC 2004).

Although the law purports to apply equally to everyone, in practice, cases involving victim-complainants who have used alcohol are less likely to result in convictions, even where the victim-complainant is not drunk (Edwards and Heenan 1994; Heenan and McKelvie 1997; Briody 2002). Studies suggest that juries pay more attention to evidence of character and conduct than they do to substantive evidence of rape (Edwards and Heenan 1994; Konradi 1996; Cook et al. 2001; Taylor 2004). In short, "common features of sexual assault are often associated with negative case outcomes" (Stubbs 2004).

In the wake of rape law reforms, while police responsiveness and sensitivity is widely believed to have improved, charge and conviction rates in some English- speaking jurisdictions have actually decreased over the last ten to twenty years (Lees 1996; Spohn and Horney 1996; Schissel 1996; Cook 1999; Stop Rape Now 2004; VLRC 2004).

In 1996-1997, the number of findings of guilty for "sexual assaults" in New South Wales was 10 per cent of the number of offences reported (Cook et al. 2001: 44). In Victoria, the number of convictions of rape in 1997-1999 was only 4.2 per cent of the number of reports (VLRC 2003: 81). My calculations based on South Australian data (Office of Crime Statistics and Research 2003) suggest that convictions as charged for rape and attempted rape were only 1.8 per cent of the number of those offences reported to South Australian Police in 2002, and that convictions have not risen above 3.1 per cent of reports in any year in the last decade (Stop Rape Now 2004). These figures are all the more disturbing when we remember that at least 85 per cent of sexual offences are never reported to the police.

The process of attrition is so "overwhelming" (Gans 1997: 28) that one writer has described it as "progressively decriminalis[ing]" sexual offences (Lees 1996: 99). Others describe police practices in relation to sexual offences as diverting sexual offenders away from the criminal justice system rather than policing sexual violence (Carrington and Watson 1996). Despite 30 years of rape law reform, legal changes have been routinely "subverted by a legal culture that tends to discredit and disbelieve women and children who allege sexual abuse" (Kift 2003: 293). In effect, the criminal justice system barely addresses sexual assaults. The overwhelming majority of sexual offences are subject to "resolution without trial" (Carrington and Watson 1996: 260; Mack and Roach Anleu 2000: 127; Stubbs 2004). It has been suggested that this systemic failure of access to justice is so extreme that "the criminal justice system is not merely failing to protect [victim-complainants] . . . the processes involved [work to] legitimise [sexual] violence" (Lees 1996: 111).

Where a matter does proceed to trial, evaluations of trial transcripts consistently show that many complainants are: accused of lying or making false reports; asked questions about behaving in a sexually provocative way; asked about alcohol intake on the day of the offence and asked about the way they were dressed at the time of the offence (NSW Department for Women 1996; Young 1998). Recent research has suggested that similar questions are asked of children alleging intrafamilial sexual abuse (Taylor 2004). A Victorian study that asked barristers, judges and magistrates for their opinions found that almost all of them believed that "rape complainants have a significantly different experience as witnesses than victims of other forms of personal violence" (Heenan and McKelvie 1997: 244).

Research in which sexual assault trials are compared with trials of major, non-sexual assault shows some of these questions are common to all assault trials (Brereton 1997a). However, there are significant differences in the "way in which stereotypes of "deserving" and "undeserving" victims were constructed and employed, and in how defence counsel sought to define normal, or typical, victim behaviour" (Brereton 1997a: 243). In particular, the nature of the questions put to sexual offence victim-complainants are humiliating in a way not shared by the questions put in other assault trials (Brereton 1997a). Further, the average length of questioning endured by victim-complainants in sexual offence trials is double that for victim-complainants in trials involving other assaults (Brereton 1997a). The situation facing Indigenous victim-complainants is significantly worse, with more questions, longer periods of cross-examination, and racist imputations being made in court (Cossins 2003).

While the structure and adversarial nature of criminal trials are common to all offences, the impact of those processes is quite different for sexual offence victimcomplainants. Thus, critical attention on the trial process itself, as well as a focus on elements specific to sexual offence trials, is needed (Brereton 1997a). The Victorian Law Reform Commission (VLRC) (2004: 85) has suggested that the responsibility on defence counsel to "vigorously test the prosecution case" and on the prosecution to "show fairness to the accused" combine to hamper sensitivity toward complainant witnesses. 2

Victim-complainants recognise the constraints operating upon them within sexual offence trials. A United States study has shown that survivors of sexual assault are far from passive in their witness roles. Rather, witnesses work on their appearance, prepare their role as witnesses and emotionally prepare "to achieve courtroom demeanour . . . consistent with idealised images of witnesses or victims" (Konradi 1996: 415). They often built teams of supportive people around them, increasing their understanding of the court process as well as their confidence and capacity to assist in the prosecution. Many provided documents, evidence and strategic ideas to the prosecution. Their active participation went well beyond the expectations of prosecutors, and at times they resisted it (Konradi 1996). However, almost all of the survivors interviewed found that portraying themselves as "legitimate victims" required presenting themselves in ways that responded to, rather than challenging, cultural stereotypes about rape and rape victims (Konradi 1996: 425).

Footnotes

1 Compare McLennan (1996), who found 18 per cent of adult Australian women have experienced sexual violence since the age of 15.

2 The research evidence that sexual offence trials are re-traumatising is ambiguous, although the evidence that sexual assaults are particularly likely to produce post-traumatic effects is strong (Rosenman 2002; Orth and Maercker 2004). Further traumatisation is particularly undesirable in this context, yet it is a common experience for the proportion of sexually assaulted people who enter the criminal justice system and one which is only likely to be mitigated by "moral satisfaction" and "relief at court outcome" which are most likely to result from conviction (Orth and Maercker 2004: 223).