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Sex offences report urges cultural change

News

Cite as: (2004) 78(10) LIJ, p. 24

The Victorian Law Reform Commission has released a landmark report into how the criminal justice system could be improved to help victims of sexual assault.

Solicitors, barristers and judges will need to attend training on how to be more responsive to the needs of complainants in sexual offence cases if recommendations from a Victorian Law Reform Commission (VLRC) report are fully implemented.

The Sexual Offences: Law and procedure final report, released on 25 August, pushes for cultural change within the criminal justice system in the way it deals with sexual offence victims.

The report calls for bodies such as the Law Institute, the Office of Public Prosecutions (OPP) and the Judicial College of Victoria (JCV) to offer programs to educate lawyers and judges handling sexual offence cases on the needs of victims.

These were some of 201 recommendations contained in the report, which dealt with the entire justice system from the reporting of sexual crime to trials.

Among the major recommendations were:

  • making the mental element of the charge of rape less subjective by tightening the use of the honest belief defence;
  • introducing a specialist list for cases involving offences against children in the Magistrates’ Court;
  • making testimony by closed circuit television mandatory for all complainants; and
  • further restricting access to the complainant’s counselling records.

VLRC chair Professor Marcia Neave said the report, released more than three years after the VLRC received the reference, showed the criminal justice system was “seriously flawed in dealing with people who report that they have been sexually assaulted”.

“Unfortunately, that problem is often invisible to the people who are inside and familiar with the system.”

Professor Neave said the report’s recommendations were intended to make the justice system treat sex assault victims fairly and sympathetically while not detracting from the fairness of trials for the defendant.

State Attorney-General Rob Hulls described the report as a landmark in that it recommended sweeping changes to the way the justice system treated sex assault victims.

“These recommendations are all about bringing about a cultural change in relation to how society and our courts deal with sexual assault.

“There must be a cultural change if we are to achieve our aim of a legal system that respects and acknowledges the experiences of victims of sexual crime rather than compounds their distress,” Mr Hulls said.

“Quite simply, we want a system that encourages people to come forward about sexual crimes, one that recognises their courage in doing so.”

The Institute welcomed the report, saying that it was a thorough examination of matters that needed to be considered.

However, the Institute labelled the recommendation calling for mandatory use of closed circuit television by all complainants as having the potential to send mixed messages to juries.

And the Criminal Bar Association has attacked proposed reforms of rape laws as ignoring the realities of human sexual relations.

Seven of the report’s recommendations deal with the training of lawyers and judges on the needs of sexual assault victims.

The report calls for bodies that offer continuing professional development, such as the Institute, to offer seminars on sexual offence laws to lawyers working in the areas of criminal law, family law and child protection.

Such programs would also include information on the social context in which sexual offences typically occur, as well as the emotional, psychological and social impact of sexual assault.

The OPP would continue to provide training for solicitors and prosecutors involved in sexual offence committals and trials. However, this training would include outlining the advantage of meeting with the victim before the hearing and advising them of what would happen when giving their evidence.

The report recommends that prosecutors from the private Bar should only be briefed to appear in sexual offence cases if they have participated in the OPP’s training program or an equivalent professional development program.

The JCV would continue to offer regular programs to judges and magistrates on sexual offence trials and committals.

This program would contain presentations by experts on the emotional, psychological and social impact of sexual assault on victims and how the assault may be experienced by those discriminated because of their race, language or disability.

Institute president Chris Dale said the report was a thorough investigation into an area of law that despite significant reform over the past 20 years still had not given enough weight to the needs of victims.

“It’s bringing the law more into line with community expectations in regards to the way we deal with sexual offence cases.”

Institute Criminal Law Section chair Rob Melasecca said such re-education was needed for the entire community in a campaign similar to the successful and long-running drink-driving campaign.

Professor Neave agreed with Mr Malesecca’s view, although the VLRC did not consider that recommendation during the inquiry that led to the report.

On rape laws, the VLRC report recommends amendments to the formulation of the mental element of rape under the Crimes Act 1958.

The proposed formulation restricts the use of the honest belief defence. The defence could only be used once evidence was produced that showed the complainant had given consent.

“The mere assertion by an accused that he believed the complainant was consenting shall not constitute sufficient evidence of an honest belief as to consent,” the report says.

A judge must also be satisfied that there was sufficient evidence of such a belief that the complainant consented to the sexual penetration before the defence of honest but mistaken belief could be considered by the jury.

The defence of honest belief would not be available to the defendant if, among other things, they had not taken reasonable steps to ascertain consent or did not turn their mind to the possibility the complainant was not consenting.

This recommendation has drawn fire from the Criminal Bar Association, which argued during the inquiry against such a change.

The association argued that the current law’s subjective test was consistent with other laws outlined in the Crimes Act. Introducing a more objective test of the mental element of rape introduced the possibility that a person could be found criminally culpable for conduct that was unintended.

Criminal Bar Association spokesman Phillip Priest QC told The Age after the release of the VLRC’s final report that an objective element would put Victoria out of step with the rest of Australia.

“The changes ... are impractical because they ignore the reality of the way in which human sexual relations are conducted,” he said.

Responding to the Mr Priest’s comments, Professor Neave told the LIJ that the VLRC had simply proposed modifications to the totally subjective approach now in place.

“So we’ve said that if a person doesn’t take reasonable steps to find out whether the person they are having sex with is consenting then in those circumstances they can’t rely on honest belief.

“I think it’s difficult to justify a position where you can say, ‘I didn’t take any steps at all, but I just assumed’.

“The other thing we have said is that if the person is not in a position to consent, for example because they are asleep or unconscious, then the other person cannot rely on honest belief.”

Another controversial recommendation is the mandatory use of closed circuit television for all complainants in sexual offence cases.

Institute president Chris Dale said this had the potential to send mixed messages to the jury.

“A jury may, for instance, form a view that the person is incapable of giving evidence in ordinary circumstances because they are too traumatised, which can have a prejudicial effect.

“Equally, from the prosecution’s point of view, there’s usually an inclination if the person is up to sustaining the ordinary giving of evidence to try to put them in front of a jury so the jury can see their reactions and the impact on the victim.

Mr Dale said the Institute would prefer to see the use of closed circuit television left open to the discretion of judges and magistrates.

Mr Hulls has committed to forming a working party immediately within his department to examine which of the report’s 83 recommendations that need legislative change would be adopted and what was needed to introduce them.

However, Mr Hulls has not put a timeline as to when the recommendations would be adopted. He said the legislative program for the Spring session of state Parliament this year was almost full, so the earliest legislation could be introduced would be early 2005.

Professor Neave said the VLRC had no powers to force government to implement recommendations, but was keen to see the recommendations implemented “as soon as possible”.

For the recommendations not requiring legislative change, Professor Neave said she would meet with the relevant stakeholders to make sure they are implemented swiftly.

Some, such as the implementation of a specialist list for cases involving offences against children was already underway.

For more information on the report, go to the VLRC’s column on page 77 of this edition.

The final report can be downloaded at http://www.lawreform.vic.gov.au.

Jason Silverii

Major recommendations

The major recommendations of the VLRC Sexual Offences: Law and procedure final report included:

• better education and training for police, lawyers and judges;

• reducing delays in trials involving children and people with cognitive impairment;

• introducing a specialist list for cases involving offences against children in the Magistrates’ Court to improve the speed and sensitivity of the process;

• reducing the number of times children and people with a cognitive impairment must give their evidence and be cross-examined on it;

• tightening judges’ control of cross-examination and barring the accused from personally questioning the complainant or other vulnerable witnesses;

• making testimony by closed circuit television routine for all complainants;

• allowing testimony of children and people with a cognitive impairment to be recorded before trial to reduce delay and trauma;

• further restricting access to the complainant’s counselling records;

• widening the evidence that juries can hear and who can give it;

• making it illegal for people to “groom” young people for future sexual acts, including through Internet contact;

• the establishment of a working party to improve responses to young sexual offenders; and

• widening the offences which protect people with a cognitive impairment against sexual abuse.

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