Law Reform Commission urges ‘trauma-informed’ overhaul in rape cases

An overhaul of rape provisions proposed by Australia’s law reform body says sexual assault complainants should be provided with a government-funded lawyer and a prerecorded hearing.

Attorney-General Mark Dreyfus on Thursday tabled the report from the Australian Law Reform Commission. Picture: Martin Ollman

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Rape complainants would be permitted to give all evidence in a prerecorded hearing, allowed to provide direct feedback on their personal interaction with the justice system, and provided a government-funded lawyer under a radical overhaul of rape provisions proposed by the national legal reform body.

The long-awaited report by the Australian Law Reform Commission into justice responses to sexual violence has also recommended complainants should be authorised to include pictures and drawings in their victim impact statements, and should not have to undergo cross-examination by an unrepresented defendant.

It also recommends all police agencies ensure “trauma-informed” environments are available when conducting interviews with complainants, which include privacy, the ability to accommodate a support person, and a “comfortable space”.

The Albanese government on Thursday said it was “carefully considering” the recommendations made by the commission, but announced a $21.4m commitment to “strengthen support for victims and survivors”.

The package includes $19.6m for the introduction of “culturally safe” trained advisers to partner with complainants as they navigate the justice system, and the extension of three specialist sexual assault legal services in Victoria, Western Australia and the ACT.

Increased access to services

“Far too many women experience sexual violence in their lifetime, and for many, their experience with the justice system can only add to that trauma,” Women’s Minister Katy Gallagher said. “This report from the ALRC is an important step towards ending that cycle of trauma.”

Women’s Minister Katy Gallagher. Picture: Martin Ollman

The Law Reform Commission review was announced by Attorney-General Mark Dreyfus in January last year to investigate evidence frameworks, court processes, jury directions and consent laws.

The 648-page report, tabled in federal parliament on Thursday afternoon, made 64 recommendations to improve outcomes for complainants, including the establishment of a national inquiry into mandatory sentencing provisions and the establishment of an official sex offender register.

‘Restorative justice’

A key recommendation included in the review is federal, state and territory governments should adopt legislation to enable “restorative justice” for sexual offences, bringing together “people affected by violence so they can discuss the harm that has been done and try to repair it”.

Restorative justice should be made available even if the rape is not reported to police, if it is reported to police but there is insufficient evidence to file charges or if the prosecution was discontinued.

It should also be made available after a guilty plea is entered or any time after sentencing.

“A starting point for restorative justice is that participants agree on central facts and the person responsible accepts some responsibility for their behaviour,” the report reads.

“Its focus on repairing harm, rather than resolving disputes, makes it different from mediation and conciliation.”

Lived-experience insights

Australian Law Reform Commission president Mordecai Bromberg, along with part-time commissioners who helmed the review, consulted a hand-picked “lived-experience advisory group” of rape survivors who provided insights on how to achieve better outcomes for complainants.

The final report recommended governments fund independent legal advisers to represent rape complainants in court, particularly when applications are made to inspect evidence that may include their private information.

Activist and rape victim Sarah Rosenberg, who was on the commission’s lived-advisory group said it was imperative for complainants to be independently represented to push back against defence lawyers whose job is to “discredit and undermine and humiliate the victim in front of the jury”.

“Right now, a defendant can pay as much money for as much preparation by their lawyer, or lawyers, plural, that they want, but no one represents the victim in the case against their own perpetrator,” Ms Rosenberg told The Australian.

“The prosecution doesn’t act for them, they act for the community, and so there’s no one to advocate for the victim’s interests.”

Criminal law barrister Greg Barns SC said while many recommendations in the report were “sensible” he believed juries could become “confused” if a third lawyer was involved in proceedings.

“There should be concern about introducing an independent lawyer to act for a complainant because we already have more than ample powers for judges to intervene in relation to inappropriate questions and style of questioning and it will confused juries and the role of prosecutors is to represent the community,” he said.

According to the report, unrepresented accused people should be banned from cross-examining the complainant, and instead “a person be appointed to ask questions on behalf of the accused person for the purposes of cross-examination only”.

“Judicial officers must inform juries it is normal process for protected witnesses not to be questioned by an accused person directly and for legal practitioners to be appointed for that purpose,” the recommendation reads.

Australian Law Reform Commission president Mordecai Bromberg.

‘National consistency’ goals

Governments should work towards a “national consistency” on a list of matters which, on their own, do not constitute consent, such as previous consent to a sexual act or the “absence of resistance”.

The report also recommends consistency on matters where there is no consent, such as if the complainant does not say anything, or if they were unconscious, drunk or sleeping at the time of the incident.

The construction of victim impact statements should be reformed to “implement flexible measures for victims of sexual offences”.

These flexible measured included the ability to include prerecorded audio and illustrative formats “such as drawings and photographs”.

Sexual offence trials should also have the option of holding a “ground rules hearings” following an application “by prosecution or defence or on the court’s own motion” prior to the complainant entering the witness box.

“These hearings provide an opportunity to plan any adaptations to questioning and/or the conduct of the hearing that may be necessary to facilitate the evidence of a vulnerable person in a criminal trial,” the report reads. “The court may make orders or give directions.”

Academics input

Labor, off the back of the report, has committed to extending three specialist sexual assault services in Victoria, WA and the ACT, along with trialing the pilots in every other jurisdiction.

The government’s commitment to supporting complainants also includes $600,000 over the coming financial year to “engage academic experts to address systemic reasons for the withdrawal of complaints, scope an independent complaints mechanism to seek review of police decisions not to pursue charges, and conduct a review of supports provided during the police investigation phase”.

Some $1.2m will be provided to extend the scope of the lived-experience advisory group to assist the government in implementing the report.

“Victims and survivors of sexual violence deserve to have confidence that they will be safe and supported to report these crimes,” Mr Dreyfus said. “At the same time, it is vital the right to a fair trial be preserved.”