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The balancing act: sexual assault and the justice system

Feature Articles

Cite as: December 2011 85(12) LIJ, p.54

When discussing sexual assault, the balance between the rights of complainant and accused, inebriation as a contributing factor and causes of under-reporting all need to be considered. 

By Ruth Parker

Since the acquittal of Andrew Lovett on 25 July 2011, much media commentary has focused on the intersecting issues of sexual assault and inebriation, coupled with under-reporting of sexual assaults and falling conviction rates. An example of such commentary was the According to Merit? column in the September 2011 LIJ.

Granted, the case of Andrew Lovett was a high profile one, not least because he had formerly been a prominent AFL player and many equally high-profile AFL players were witnesses in the proceedings. What was not dealt with was the fact that his was one of many criminal proceedings for sexual offences which proceeded through the court system, alongside other cases which proceeded to plea or trial. His matter was not extraordinary, notwithstanding the media attention it received. His matter was, however, the catalyst for discussion of the management of prosecutions for sexual offences.

It is of concern that the view adopted by the column failed to adequately deal with the serious legal and evidentiary issues surrounding sexual assault cases and the balance that the justice system is required to effect between the rights of a complainant in a sexual assault matter to have their complaint determined, with those of the accused, who is innocent until proven guilty and to whom is reserved the right to test the allegations made against them.

The justice system is not perfect, nor will it ever be. One of its aims is to determine allegations made by a complainant, considering all of the evidence and the defence mounted by the accused. When one must balance the rights of two individuals, the approach adopted by our legal system has always been to test the evidence put before the court and have the matter determined by a jury beyond a reasonable doubt.

However, in sexual assault cases, the legislature and the courts have acknowledged that such matters are particularly sensitive when compared with other alleged offences. To this end, the Evidence Act 2008 and the Criminal Procedure Act 2009 have sought to correct the historical imbalances between an accused and a complainant in a sexual assault matter.

The column’s criticism of the personal statement made by David Grace QC (for Mr Lovett) when he said, inter alia, that he would encourage his daughter to report a sexual assault to police because he was of the view that there were adequate protections in place, was arguably inappropriate given the personal nature of the question.

In addition, this criticism contained in the column did not analyse or even advert to the substantial protections already provided to complainants in the abovementioned Acts, notably introduced after the VLRC 2004 Sexual Offences: Final report relied on in the column.

This article proposes to deal with some of these protections and the under-reporting of sexual assaults, considering the social and legal constructs within which both occur.

Legal protections afforded to complainants

Complainants in sexual assault cases are protected by a blanket prohibition against improper questioning.1 Questioning may be considered improper if a person deemed vulnerable (in sexual assault cases this is by virtue of the allegations) is asked a line of questioning which is misleading, intimidating, offensive, repetitive or humiliating.

Complainants are not to be asked questions in relation to their sexual history without the leave of the court and questioning will be limited to the relevant matter at hand.2 The presiding judicial officer must grant leave only if they are satisfied that the evidence has substantial relevance to a fact in issue and it is in the interests of justice to allow the cross-examination or admit the evidence.3 Furthermore, the sexual history of a complainant must not be raised for the purpose of attacking their credibility or general disposition unless the court finds that its introduction would materially impair confidence in the reliability of the complainant’s evidence.4

In many cases, the only relevance of a complainant’s sexual history is in cases where physical/forensic evidence is in question and there is evidence that the complainant may have had sexual contact immediately before commission of the alleged offence. For example, a complainant who is employed as a sex worker may, with the leave of the court, be asked whether she had any sexual contact before or after the alleged incident to establish whether the physical evidence relied on by the prosecution may have been contaminated.

It is not a defence to an alleged sexual offence that a person was so affected by drugs or alcohol that they consented to a sexual act but subsequently “forgot” or regretted doing so. The law specifically states that consent must be “free agreement” and that a person does not freely agree if they are so affected by drugs or alcohol that they are incapable of freely agreeing.5

That being said, the law does not go so far as to assert that any person affected by drugs or alcohol is not capable of freely agreeing. Rather, a jury may be satisfied that, notwithstanding the presence of drugs and alcohol, the complainant freely agreed to the sexual activity given the surrounding circumstances.

To reduce trauma caused to complainants by being physically in the same room as the accused, the court must direct that a complainant in a sexual assault matter give their evidence and be cross-examined via remote witness facility, unless the prosecution makes an application that the complainant be present in court.6 An application may only be made by the prosecution if it is at the behest of the complainant and they have been made aware of their right to give evidence via remote witness facility.7 Where evidence is given by video link, the complainant is not able to see the accused, or the jury. This provision, included in the Evidence Act 1958, was introduced in 2006 in response to the 2004 VLRC Sexual Offences: Final report.

Where the complainant is a child, they must not be cross-examined at committal. The law permits a child complainant to be cross-examined once only at a special hearing, which is recorded before the trial.8 The tape is then played before the jury, which is empanelled after the special hearing has been conducted. The complainant will likewise not be able to see the accused during examination. All evidence given by complainants in sexual assault matters is given in closed court and the identity of a complainant of sexual assault cannot be published or broadcast.9

There are no similar protections given to an accused person in sexual offence matters and, accordingly, while the identity of a complainant cannot be published (even in cases where the accused is subsequently acquitted), the identity of an accused can be widely reported. In cases where the accused is ultimately acquitted of all charges, it will often be the case that the accused has suffered significant financial and personal loss as a result of having been the subject of the alleged offence, even before the matter is tested and decided by 12 impartial and randomly selected individuals in court.

Under-reporting

Undoubtedly the under-reporting of sexual assaults, as reported by the Victorian government, VLRC and the Australian Institute of Criminology reports, is concerning and is a matter that is being dealt with by the legislature and legal profession.

However, the nature of sexual assaults and the milieus in which they occur are critical to an assessment of under-reporting, which may not be solely due to the courtroom environment, as implied by the According to Merit? column. It has been reported that the vast majority of sexual assaults are committed against women by men whom they know and this is the basis for the introduction of Guiding Principle (d) in the Crimes Act 1958 and s32AB of the Evidence Act 2008.10 Accordingly, the prevalence of under-reporting of sexual assaults perpetrated by friends, relatives or colleagues may arise from concerns not connected with court proceedings.

In this context, there are other potentially more relevant factors for the woman’s consideration than her prospective experience of the criminal justice system. There are cultural, religious and personal factors at play. The complainant may consider the social consequences of reporting the matter to police to be too costly. Similarly, victims of sexual assaults committed in custodial environments such as prisons may take the view that it is unsafe to report these offences, notwithstanding that they too are protected by the law.

Furthermore, a complainant may be so young or suffer from such a significant intellectual disability that their guardians may consider that they will not be able to adequately report the matter and, therefore, a unilateral decision is made not to report the complaint in the absence of advice about the protections available to vulnerable complainants with special needs.

Strikingly absent from the column’s assessment is the intersection between gender and reporting. While the statistics indicate that the vast majority of complainants in sexual assault matters are female, these statistics are based on some initial reporting that did not result in a criminal prosecution. There is little consideration of sexual assaults against males, perpetrated by other males or by women, which are never reported. The gendered nature of discourse in relation to sexual assault is arguably feminised and may in and of itself be ostracising to male complainants, who feel that their involvement in the system is somehow, rightly or wrongly, undermining to their masculinity.

It is not denied that sexual offences are under-reported. The litany of independent reports in relation to this issue provides overwhelming support for this proposition.

However, if we are to deconstruct the precedence of under-reporting all social, cultural and legal factors must be considered. Such consideration cannot, in my view, be motivated by any particular agenda. Rather, it should be done in the understanding that every person in Victoria is entitled to a fair trial before a jury and to be considered innocent until proven guilty.

Equally so, the law in recent times has tried to provide the very best protections and support systems for complainants in sexual assault matters in the understanding that sexual offences are singularly distressing crimes for the complainants. In relation to the column’s references to Andrew Lovett, he was acquitted unanimously by a jury of 12 individuals randomly selected from the public, who had the opportunity to hear all the evidence, and therefore is presumed innocent of the allegations. In relation to the column’s comments in relation to Mr Grace QC, he has an important role to play in the administration of justice, equal to the role played by prosecutors, and he is entitled to his opinion.



RUTH PARKER is a solicitor at Galbally Rolfe, Barristers & Solicitors. The views expressed are shared by the partners of Galbally Rolfe.

1. Section 41, Evidence Act 2008.

2. Section 342, Criminal Procedure Act 2009.

3. Section 349, Criminal Procedure Act 2009.

4. Section 352, Criminal Procedure Act 2009.

5. Section 36(d), Crimes Act 1958.

6. Section 363, Criminal Procedure Act 2009.

7. Section 363, Criminal Procedure Act 2009.

8. Sections 372–375, Criminal Procedure Act 2009.

9. Section 133, Criminal Procedure Act 2009; ss80–80AA, County Court Act 1958.

10. Section 37B, Crimes Act 1958.

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