How the legal system responds to sexual assault victim/survivors
This article is written for women and assumes a male offender, however SECASA acknowledges that both men and women can be survivors of sexual abuse and that offenders can be male and female.
Sexual assault is one of the most under reported crimes in Australia. There are many reasons for this, including the social stigma which flows from myths surrounding sexual assault, and the ways in which the assumptions beyond those myths flow into the workings of the legal system. Additional factors include the facts that:
- the perpetrator is often known to the victim/survivor;
- there is a perception and reality that the legal process which follows reporting to the police is difficult and overly concerned with the rights of the accused; and
- conviction rates are low.
Those who have been the victim/survivors of sexual assault and who choose to undertake legal action, frequently identify the legal process following the decision to report, as being nearly as traumatic as the actual experience of sexual assault. Given that most victim/survivors are women, it is important to consider the position of women before the law, where they have traditionally been viewed as the property of men. Nowhere is this issue of ownership more clearly reflected than in the laws on sexual assault. For example, it was not until the late 1980's that immunity from prosecution for rape within marriage was removed in all states and territories.
Historically, rape and specifically consent, have been defined by Common Law, also known as precedent. Since the women's movement and the resulting change in community attitudes, the laws have been reformed by Parliaments in most states of Australia. Some of these reforms have resulted in changes to the issues of Consent, Language, Uniformity.
Prior to the reform of rape laws, Common Law asserted that in order to 'prove' rape, it was necessary to prove sexual intercourse had occurred without consent, where the accused knew, or was reckless as to whether, the victim/survivor was consenting. The process of rape law reform has largely comprised of codification of Common Law.
In each State and Territory, Parliaments have legislatively over-ridden Common Law by introducing statutory changes to the rules of evidence.
For example, the Common Law definition of rape only covered the insertion of a penis into a vagina, whereas women experienced sexual violation in many other ways. Moreover, the definition of 'consent' needed to be clarified to ensure that it was not legally defined from the male perspective; as did the definition of penetration vis a vis intercourse.
Most states have now adopted legislation which focuses on forms of coercion other than the employment of physical violence. Although legislative definitions of consent vary a little from state to state, the themes of the reforms promote an understanding that when coercion is employed, it negates consent. Most states have specifically defined the circumstances in which consent is negated, although 'proof' that a rape occurred still relies on effectively convincing a jury not only that the woman did not consent, but also that the offender knew she was not consenting.
There has also been a shift towards gender neutral language being adopted in the law. Unfortunately, the effect of this in cases of sexual assault, has been to obscure the gendered nature of a crime which has been well demonstrated to be overwhelmingly carried out by men against women, men and children.
Recently, recommendations have been made for the establishment of uniform rape law across Australia in order to provide a minimum standard of sexual and bodily autonomy and integrity for women across all States.
So what are the legal principles that guide justice for sexual assault survivors?
Part of the process of engaging with the law is to be aware that for many victim/survivors, formal justice through the criminal justice system may be the only means through which they expect justice to be done. This is not an unreasonable expectation in a system which is designed to place limits on the behaviour of citizens by creating and enforcing laws, and to guarantee the protection and rights of members of the community. (Brett and Williams, 1993).
The perils of the criminal justice system for women have been well documented. Most victim/survivors are better informed about the perils than they are about their rights to pursue legal options. Such perils may negatively impact upon a victim/survivor's decision to enter into the criminal justice system.
Each victim/survivor has the right to have his or her experience of sexual assault understood within a social and political context. S/he retains that right throughout the legal process. Each victim/survivor has the right to a counsellor, to medical and legal representatives and information. The role of these workers are then, not to deliver her unprepared to this system, but to constructively engage with it. The worker must understand the legislative options which presently exist, and advocate for the rights of the victim/survivor and for the significance of the victim/survivors experience to be visible within this process. These legal principles do not just impact on the liberty of the accused. They also condition the experience of the victim/survivor at court. They feed into another set of powerful beliefs in our society, which we also find reflected in the legal setting.