Criminal action

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The criminal justice system remains the only formal system in which individuals may be held to account for their violent, individual behaviour towards women, children and males. Alternatives to the criminal justice system locate the responsibility for resolving violence with individuals. The process of criminal prosecution has the potential to locate the responsibility of the actions of an individual within a culture of violence which rests firmly within the domain of the state.

It is the right of every victim of this crime to pursue formal justice through action in the criminal justice system, whilst recognising that the responses of this system are informed by the very culture in which the violence is perpetrated.

The consequence is that once an offence is reported to the police, the decision to proceed with an investigation and charges is ultimately that of the police. This decision to prosecute will usually depend on whether or not the police consider there is sufficient evidence that the offence has occurred. It is important to stress that 'legal' guilt is different from 'factual' guilt, particularly guilt as defined by the victim/survivor of rape. In some States, the victim/survivor or her/his advocate may apply for a review of a police decision not to lay charges.

If a decision to report to the police has been made it is important to report the incident as soon as possible. This is because the presence of any supporting evidence on the victim/survivor's body or clothes, which has not already been destroyed, may be helpful to prove the offence. At this stage therefore, the victim/survivor must be informed about the evidentiary consequences if they choose to shower, change clothes, drink or go to the toilet. The forensic goal is to collect evidence from the victim's body and the clothes worn at the time of assault as soon as possible, with the least amount of interference as possible. Evidence and clothing are collected as part of the medical examination by the forensic medical officer.

There is no legal requirement in any state for a police officer to be present during the medical examination, or to be present whilst the victim/survivor changes out of clothing worn at the time of the assault. There is also no requirement that the victim/survivor be examined by a forensic medical officer. Any medical practioner can perform a medical examination and collect forensic evidence, if they refer to the forensic protocols in each State.

Ultimately if the victim/survivor believes it is in her/his best interest to use the toilet or to have a drink, they must not be prevented from doing so even in the event that they do decide to report to the police. S/he is the victim/survivor of a crime and their right to bodily integrity must take precedence over any other process.

It is important to note that the law has been amended to remove the requirement for physical resistance, or the presence of semen in order to obtain a conviction.

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Disclaimer Copyright Updated: 8 Oct 2003