Australia’s top law reform agency wants all police, prosecutors and defence lawyers to go through mandatory training on rape myths and misconceptions, in one of several steps to improve a justice system that is failing women who have been sexually assaulted.
Support services should also be overhauled so that every victim or survivor of sexual violence can get free legal advice and work with a specialist “navigator” who would help them choose the best pathway to take their case forward, the Australian Law Reform Commission has said in a major review.
The commission’s advice is aimed at rewriting Australia’s response to sexual violence.Credit: Illustration: Jo Gay
This could involve criminal prosecution, but there should also be a massive expansion of restorative justice options, which are designed to bring people together to discuss the harm done and how to repair it, without a criminal trial or charge.
The commission’s advice for rewriting Australia’s response to sexual violence aims to improve justice in a society where one in five women and girls aged 15 or over have experienced such violence. More than 90 per cent of women don’t go to police with complaints. When they do, up to 85 per cent of cases do not proceed to charges.
“The statistics are a striking illustration that this serious harm can frequently occur without leaving a trace on the justice system,” the report said.
“People who have experienced sexual violence often shoulder the harm’s impacts without having the opportunity for a just outcome. People who commit it face no consequence for their actions. In society it remains invisible.”
Attorney-General Mark Dreyfus on Thursday tabled the commission’s advice, which includes 64 recommendations for the Commonwealth, states and territories. He asked for the report early last year following years of advocacy around sexual violence in Australia.
The report noted that sexual violence occurs in almost all areas of Australian life – private and public – and causes great personal, social and economic harm. “Yet few people who experience sexual violence engage with the justice system,” it said.
“The justice system is failing to meet the twin goals of access to justice and accountability: it is not supporting those who have experienced sexual violence to engage with the justice system, or holding those who use sexual violence to account.”
Several states and territories have taken steps to improve – NSW and Victoria, for example, have introduced “affirmative consent” models that require people to communicate consent and take steps to ensure the other person is also consenting.
But laws still vary across the country, and the impact of those recent reforms needs to be evaluated.
The commission said it wanted broad national consistency based on the best model of affirmative consent, but it recommended further inquiries to determine this, rather than specific legal changes for each jurisdiction.
Instead, the report focused on lifting other avenues for support and justice and reducing barriers to access. The Albanese government will spend $21 million to get started, and trial new non-legal services recommended by the commission, including justice system navigators.
Each navigator will be a trained support person who guides a victim or survivor through their chosen justice pathway, and advocates for them during interactions with police, prosecutors, the courts and other systems.
The government will also fund researchers to probe why women withdraw their police complaints and design an independent complaints mechanism under which women can ask to review why police decide not to pursue charges. States and territories have also been asked to review every sexual violence report that did not progress to charges in the past 12 to 18 months and publish their findings.
Police have been singled out for mandatory education about sexual assault myths and misconceptions, along with prosecutors and defence lawyers. They should also have guidelines for minimum standards for dealing with sexual assault cases.
That’s because they work most closely with victims in the criminal justice system, meaning they should understand the latest evidence about the impact of trauma on memory, behavioural responses to sexual violence and the varied nature of sexual offending, including grooming and coercive control.
“Many people still hold incorrect beliefs about sexual violence and about how people who have experienced sexual violence behave. They can lead to unfair assumptions about the credibility and reliability of people who have experienced sexual violence,” the report said.
“Police are the ‘gateway’ to the criminal justice system, including general and specialist police. The levels of attrition for complainants of sexual violence at the police stage are unacceptably high.”
For other people who work on sexual violence cases – court staff, barristers, solicitors, and judicial officers – training is strongly encouraged.
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