In the wake of proposed changes to the court system for domestic violence cases, there are now calls for changes to the legal process for all sexual assaults.
rate of reported sexual assault compared to other developed countries. It's difficult to compare convcition rates (people convicted of rape as a percentage of those charged) globally, but many rape support groups say convictions are too low.
Workers who assist victims of rape in Australia say changes are needed here to redress the balance in a system which they say is stacked against the victim.
One of the things they are calling for is separate courts to hear sexual assault cases, presided over by dedicated, specially trained judges.
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Support workers - who often who have first-hand experience of the court process - also say there should be consistent laws across the country, in line with reforms being made in relation to domestic violence.
Often, they say, rape victims are put off pursuing charges because of lengthy court processes and difficulties with meeting the extensive requirements for proof, meaning that the chance of conviction is often slim.
Karen Willis from the NSW Rape Crisis Centre said momentum for specialist courts for sexual assault and domestic violence has been building for a long time.
She told SBS that such courts could also help address outdated precedents.
“We’re still having sexual assault matters decided on decisions that may have been made 15, 20, 30, 50 years ago on the views and attitudes of the time,” she said.
There was similarly a need for additional training throughout the entire legal system, according to Karin Cheyne from the Brisbane Rape and Incest Survivors Support Service.
Ms Cheyne told SBS that education should also extend to judges, whose current definition of violence was “just draconian”.
“They need to be reflecting on their views and judgements,” she said.
“If they’re the ones that are making these decisions and instructing a jury about how to make decisions, they’ve got a responsibility to get up to speed with some training.”
Ms Cheyne also voiced support for a specialist court system, similar to those in place in Britain and South Africa.
Mary Heath from Flinders University’ School of Law said the implementation of specially trained staff in South Africa had made a huge difference to prosecution and conviction rates.
But Associate Professor Heath said even with secure funding, a specialised system was not guaranteed to be successful.
“This is not a magic bullet that can cure every difficulty in the path of a person who experiences sexual assault,” she said.
“The South African example shows that as with so many other services, inadequate funding and support will prejudice its success.”
Alternative penalties
Another change that has been suggested is alternative penalties for convicted and accused rapists, in order to curb the number of reoffenders in Australia.
More than one in five of the convicted aggravated sexual assault offenders in NSW had at least one prior sexual assault conviction, government figures state, while almost 20 per cent had three or more prior convictions.
'A lot of women who are raped by someone they know - they don’t want them to go to prison'
According to figures issued by the , the occurrence of prior convictions increased when examining all types of sexual assault - more than 18 per cent of offenders had three or more prior convictions.
Ms Willis is among the support workers calling for the introduction of behavioural programs as part of the justice system.
She told SBS it was historically very rare that a sex offender would offend only once, but alternative punishments could help break the cycle.
“Most offenders will offend throughout their life,” she said. “This is a great opportunity to do some reasonably early intervention and get some good behaviour change for that person now and that might reduce that offending behaviour in the future. If we can do that, it’s got to be a good thing.”
Ms Cheyne said an alternative to conviction also needed to be introduced. She told SBS that victims would benefit from alternate ways to be heard and validated.
“A lot of women who are raped by someone they know - they don’t want them to go to prison,” she said. “They don’t want to report them to the police. They just want them to stop the violence.
“There’s nothing in the middle, there’s no education and no other ways to prevent men from continuing to use violence in that way.”
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Being a 'good witness'
Ms Cheyne said the notion of being a “good witness” could also act as a deterrent for a rape victim, with cases undermined by elements such as alcohol or memory.
“It’s about memory - remembering details, times,” she said. “A bad statement could be where [victims] don’t remember the date, or the time or his face. They didn’t tell anybody… Or they were intoxicated.”
Ms Cheyne said if the attack happened when the victim was intoxicated, it could be enough for a case to not go forward. Even a delay in reporting could jeopardise a victim being a witness.
“The system is there to protect the accused,” she said.
“It’s incredibly difficult. I think that a lot of women know that about the system, they know that they’re going to have a really hard time. Sometimes I tell women it’s going to be a hard struggle.”
'You don’t allow the entire woman’s sexual past to be given and that they are actually very strong about not doing that'
Professor Cathy Humphreys spent 12 years working in England, where she said reforms had made the system “much less complicated”.
“There’s been an enormous amount of reform in the courts in England to try to enforce some of the restrictions about how evidence is taken,” the University of Melbourne academic said.
“You don’t allow the entire woman’s sexual past to be given and that they are actually very strong about not doing that. There has been a lot of training of judges and there has been a lot of development of specialist courts. So I think that over time, there’s been a lot of attention given to the issues around sexual violence.”
Professor Humphreys said there were also a lot of strong advocates in England around rape reform, who had helped secure better control over lines of questioning involving the victim’s sexual past or wardrobe choices.
“The judge has pulled the defendant into line and stopped that,” she said.
“It does [happen in Australia] with some judges - some judges really make a stand, but there are a lot of waffly areas. Some are not as assertive as they could be. I think it’s about court culture, and training can be part of that.”
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What is the legal process for rape cases in Australia?
Lengthy court processes
Chrystina Stanford from the Canberra Rape Crisis Centre said the difficulties within the court room could be eased with the introduction of time limits for sexual assault cases.
Ms Stanford told SBS that there was various legislation in place from state to state regarding the timing of hearings, but there were often delays with the period from reporting to result stretching into years.
“This has a really awful impact on victims and can be a reason people do not continue with the process,” she said.
“In some states it can be several years before the case gets to court, which draws out the process for the victim and does not allow them a sense of being able to move on with their life.”
Women who are experiencing sexual or physical violence are encouraged to ring , a national telephone support line.
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