Allegations and case outcomes
Attitudes regarding the perceived culpability of adolescent and adult victims of sexual assault 2011
Data from New South Wales indicated that 74% of alleged offenders in sex offence cases against an adult that proceed to trial in the Higher Courts, are acquitted of all charges (Fitzgerald, 2006). For sex offences alleged against a child, the acquittal rate is slightly lower at 61%. In comparison, the acquittal rate across all offences is 30%. Wundersitz (2003) found similar results with regards to sex offences against children in South Australia.
It has been estimated that less than 30% of sexual assaults are ever reported (Taylor, 2007). The perception of being blamed for their abuse has served as a barrier to victims accessing formal support systems (Ahrens, 2006; Lievore, 2005a; Ullman & Filipas, 2001)
ABS Criminal Courts, Australia, 2010–11 (4513.0)
Defendants can have their charges finalised via different methods (see Appendix 2). The main categories of finalisation are: adjudicated finalisations, where the court has made a finding as to the guilt or otherwise of the defendant; finalisation by transfer between court levels; withdrawal by the prosecution; and other methods such as defendant deceased or unfit to plead.
Five offence types accounted for over three-quarters of defendants finalised in the Higher Courts in 2010-11: acts intended to cause injury (22%), illicit drug offences (19%), sexual assault (18%), robbery and extortion (10%), and unlawful entry with intent (7%) (Table 2.5).
Charges withdrawn by the prosecution
In 2010-11, 2,197 (13%) defendants had their charges withdrawn by the prosecution, a small increase from 2009-10 (Table 2.2).
During 2010-11, the following offences had the largest proportion of defendants finalised through the withdrawal of charges by the prosecution (Table 2.5):
- abduction, harassment and other offences against the person (21% or 72);
- sexual assault (20% or 584);
- property damage and environmental pollution (18% or 62); and
- theft (17% or 70).
South Australia (29%) and Tasmania (26%) had larger proportions of defendants finalised by charges withdrawn than the national average of 14%. New South Wales and Victoria had the smallest proportion of defendants finalised by this method (5% and 6% respectively) (Table 2.3).
Of the 16,298 defendants finalised, 7% (1,142) were acquitted. This represents no change from the proportion in 2009-10 (Table 2.2).
Two principal offences accounted for over two-thirds of all defendants acquitted in 2010-11: sexual assault (542 or 48%) and acts intended to cause injury (257 or 23%) (Table 2.5).
Defendants finalised with sexual assault and homicide offences had the largest proportion of defendants acquitted (19% and 15% respectively) (Table 2.1).
Queensland and Tasmania had the lowest proportion of defendants acquitted (6%) and the Australian Capital Territory had the highest (10%) (Table 2.3).
Defendants proven guilty
In 2010-11, the majority (78% or 12,768) of defendants finalised in the Higher Courts were proven guilty. Of these defendants, a large proportion (88% or 11,203) pleaded guilty, while 11% had a guilty finding at trial (Table 2.2).
The proportion of defendants pleading guilty varied by offence type: 82% of defendants with a principal offence of robbery and extortion pleaded guilty, whereas 44% of defendants with homicide offences and 46% of defendants with sexual assault offences pleaded guilty (Table 2.5).
Source: Australian Bureau of Statistics
Measuring sexual offender recidivism 2010
- 1 in 6 women who experience a sexual assault report to police;
- two-thirds of reported cases are actually recorded by police (calculation based on Gelb, 2007); and
- for incidents of sexual assault that were recorded, the offender(s) were proceeded against for approximately 1 in 4 victims (measured at 6 months after the report was made; ABS, 2004).
ABS Year Book Australia, 2009–10 (1301.0)
Higher Courts - Adjudicated defendants - principal offence
An adjudicated defendant is either a person or an organisation finalised via a guilty plea or a decision by the court as to their guilt or innocence of the final charges laid. Defendants can also be finalised by non-adjudicated methods such as transfer to other court levels or withdrawal by the prosecution.
In 2007-08, defendants were adjudicated in the Higher Courts for principal offences that fall within the following divisions of the Australian Standard Offence Classification (ASOC): acts intended to cause injury (23%); illicit drug offences (18%); sexual assault (15%); robbery/extortion (11%); and unlawful entry with intent (9%). Over three quarters of defendants adjudicated (76% or 10,861 defendants) by the Higher Courts had a principal offence in one of these five categories (table 13.14).
Nationally, 92% (13,204) of adjudicated defendants were found guilty or pleaded guilty in the Higher Courts, while 8% (1,141) were acquitted.
Defendants were most likely to be acquitted for the principal offences of sexual assault (24%) and homicide (18%).
All defendants charged with road traffic offences (100%) and almost all defendants charged with public order offences; unlawful entry with intent; illicit drugs and weapons and explosives offences (all 98%) were proven guilty (i.e. either a guilty plea or a guilty finding in the Higher Court during 2007-08 (table 13.14)
In the Higher Courts, the most prevalent principal offences for both male and female adjudicated defendants were acts intended to cause injury (23% of males and 22% of females), and illicit drugs (18% of males and 21% of females). Proportionally, more females were adjudicated for the principal offence of deception (17%) than were males (4%). In contrast, there were proportionally more males than females with a principal offence of sexual assault (16% and 2% respectively) (graph 13.15).
Higher Courts - Defendants proven guilty - principal sentence
Defendants proven guilty in the Higher Courts predominantly received custodial orders (i.e. custody in a correctional institution or the community or fully suspended sentences) (83%) (table 13.16).
Defendants proven guilty in the Higher Courts for homicide, robbery/extortion, and sexual assault offences incurred the highest proportion of custodial orders (98%, 91% and 88% respectively). Defendants proven guilty for road traffic and public order offences incurred the highest proportion of non-custodial sentences (43% and 39% respectively).
Magistrates' Courts - Adjudicated defendants - principal offence
Road traffic offences accounted for the greatest proportion (45% or 256,963) of defendants adjudicated in the Magistrates' Courts in 2007-08. After road traffic offences, the largest proportion of defendants were charged with: public order offences (11%); dangerous or negligent acts endangering persons (9%); acts intended to cause injury (8%); offences against justice procedures, government security and government operations (6%) and illicit drug offences (5%).
Nationally, 96% (541,497) of adjudicated defendants were proven guilty in the Magistrates' Courts, while 4% (24,330) were acquitted.
Defendants adjudicated in the Magistrates' Courts were most likely to be acquitted for abduction (39%), homicide (37%) and sexual assault (20%) offences.
The principal offences with the highest proportion of defendants proven guilty in the Magistrates' Courts were illicit drug offences and dangerous or negligent acts endangering persons (both 99%) and weapons and explosive and deception offences (both 98%) (table 13.17).
Children's Courts - Adjudicated defendants - principal offence
The main offences that defendants were adjudicated for in the Children's Courts during 2007-08 were: acts intended to cause injury (16%); theft (14%); unlawful entry with intent (12%); deception; and road traffic offences (both 11%).
Nationally, 96% (30,742) of adjudicated defendants were proven guilty in the Children's Courts and 4% (1,246) were acquitted.
Higher proportions of acquittals occurred for defendants charged with homicide (25%), sexual assault (11%) and acts intended to cause injury (7%).
The principal offences with the highest proportion of defendants proven guilty were for: dangerous or negligent acts endangering persons; deception; illicit drugs; weapons and explosives; and road traffic offences (all 98%) (table 13.20).
Source: Australian Bureau of Statistics
ABS Criminal Courts, Australia, 2009-10 (4513.0)
Five offence types accounted for over three-quarters of defendants finalised in the Higher Courts in 2009-10: acts intended to cause injury (22%); illicit drug offences (19%); sexual assault (17%); robbery and extortion (11%); and unlawful entry with intent (8%) (Table 2.5).
Charges withdrawn by the prosecution
Of the 2,225 defendants whose charges were withdrawn by the prosecution in 2009-10, the greatest number of these defendants had charges for sexual assault (607) and acts intended to cause injury (537).
Principal offences with the largest proportion of defendants finalised by charges withdrawn were abduction, harassment and other offences against the person (28%), and sexual assault (21%). In contrast, 6% of defendants facing charges of prohibited and regulated weapons and explosives offences and homicide offences, had their charges withdrawn (Table 2.5).
South Australia (28%) and Tasmania (24%) had larger proportions of defendants finalised by charges withdrawn than the national average of 13%. New South Wales and Victoria had the smallest proportion of defendants finalised by this method (5% and 7% respectively) (Table 2.3).
Of the 16,834 defendants finalised, 7% (1,216) were acquitted; no change from the proportion in 2008-09 (Table 2.2).
Two principal offences accounted for over two-thirds of all defendants acquitted in 2009-10: sexual assault (557 or 46%); and acts intended to cause injury (291 or 24%).
Defendants finalised with sexual assault and homicide offences had the largest proportion of defendants acquitted (19% and 17% respectively) (Table 2.5).
Tasmania had the lowest proportion of defendants acquitted (4%) and the Australian Capital Territory had the highest proportion (11%) (Table 2.3).
Defendants proven guilty
In 2009-10, the majority (78% or 13,193) of defendants finalised in the Higher Courts were proven guilty. Of these defendants, a large proportion (89% or 11,697) pleaded guilty, while 10% had a guilty finding at trial (Table 2.2).
The proportion of defendants pleading guilty varies by offence type: all defendants with a principal offence of traffic and vehicle regulatory offences pleaded guilty whereas 47% of defendants with homicide offences or sexual assault offences pleaded guilty (Table 2.5).
Source: Australian Bureau of Statistics
Rape mythology and the criminal justice system - A pilot study of sexual assault sentencing in Victoria 2009
Sexual offences are regarded in the VSM as "among the most serious non-fatal offences in the Victorian statute book and this is reflected in high maximum penalties, now generally 25 years imprisonment" Victorian Sentencing Manual (VSM) (VSM, s26.3.1). A statistical analysis by the Sentencing Advisory Council(2009) found that of the 244 charges of rape heard by higher courts in Victoria, 92.2% resulted in imprisonment. Incest and sexual penetration of child under 10 similarly had high rates of imprisonment (over 90%). Of the 475 charges heard for sexual penetration of child between 10 and 16, just over half (51.8%) resulted in imprisonment. Sentences for sexual offences are on average significantly lower than the upper level of the penalty. Concentrating on the charge of rape, the average sentence was 4.7 years, with a total effective sentence (i.e., for a case of rape where more than one charge of rape is heard) was 7.6 years. Over a 5-year period, the mean length of imprisonment for an offender was 5 years (meaning that half the terms were under five and half were between five and 25 years) (Sentencing Advisory Council, 2007a). For armed robbery (also a Level 2 offence) the median imprisonment term was 2 years and 9 months and the average sentence imposed was 3 years and 9 months (Sentencing Advisory Council 2007b).
Although sentences for sexual offences appear longer than other similarly classified offences, it must be kept in mind that a vigorous attrition process means that only the most robust and serious offences make it to the court stage in the first place. In addition, sexual offenders are more likely to be found not guilty than other offenders. Aggregate data shows that 76.1% of sexual offenders were found guilty in the most recent available data - significantly lower than the 92.1% of defendants in total found guilty of offences finalised in Higher Courts in Australia in that period (Australian Bureau of Statistics, 2009).
When the total effective sentences of imprisonment for all offences, both sexual and non-sexual, were examined (refer to Table 2), the average non-parole period for strangers was 8.3 years, compared to 3.1 years for offenders known to the victim.
The longer average sentence for strangers may be a result of the greater number of convicted charges for strangers. Stranger rapists and those acquainted with the victim were more likely to be sentenced for more than one count of the sexual offence for which they were charged, with the average number of counts per person being 2.5. This compares to an average of 1.2 counts for each offender in the categories of family and partner/ex-partner.
Mitigating variables mentioned in all cases were similar for each category of defendants. These were primarily: that the defendant pleaded guilty; demonstration of remorse; no prior convictions; previous good character; and reasonable prospects for rehabilitation. However, the mitigating factors applied in the family cases appear to be given greater weight that those in any other category, cancelling the effect of any aggravating variable and resulting in lower sentences. It should be reiterated however, that no analyses of statistical significance were conducted, and consequently, interpretations of this data should be viewed as suggestive only.
Judging rape: Public attitudes and sentencing 2007
Within the media there has been widespread criticism directed at judges for handing down sentences regarded as too lenient and for their apparent failure to take sexual assault seriously. For example, in early 2006, Victoria's Herald Sun reported findings that 91% of survey respondents thought that criminals are let off lightly and 92% believed that judges did not represent the community in their decisions (cited in Freiberg, 2006).
Sexual pressure and young people's negotiation of consent 2007
Despite over 20 years of legislative reform in Australia and internationally, society - and indeed the law - still has trouble identifying sexual violence (Gold & Villari, 2000). This is reflected in the low reporting, prosecution and conviction rates for sexual assault across all Australian states and territories (Heath, 2005; Lievore, 2003, 2004). Data compiled by the Victorian Law Reform Commission indicates that in Victoria in the years 1997-1998 and 1998-1999, of those rapes that were reported to police less than one in six proceeded to prosecution (VLRC, 2004, p. 80). Furthermore, of those rape cases that did proceed to prosecution, 76 per cent did not result in a conviction for rape (VLRC, 2004, p. 80). This process of attrition for cases of rape and sexual assault is well documented in the national and international literature and has been described as a virtual decriminalisation of sexual violence (Lees, 1996, p. 99), a suggestion that is "all the more disturbing when we remember that at least 85 per cent of sexual offences are never reported to police" (Heath, 2005, p. 5).
Study of Reported Rapes in Victoria 2000-2003
Criminal Investigation Unit (CIU) members' views about the allegations and case outcomes:
- In 75% of the cases where charges were laid, CIU members indicated that they were confident the victim was telling the truth.
- In 11.2% they thought the allegations were probably genuine.
- In contrast, in 30% of cases that resulted in NFPA (no further police action), members indicated that they were confident or reasonably confident that the victim was making a false report.
- In 44% of cases that resulted in NFPA, members recorded information about the case in neutral terms without expressing a view about the veracity of the allegations.
- In 27.4% of cases that were subsequently withdrawn, CIU members were more likely to doubt the allegations were genuine
- In 39% of Complaint Withdrawn (CW) cases, members were neutral in expressing their own views as part of the information they recorded.
- In 54.3% of the cases examined, Sexual Offences and Child Abuse Unit (SOCAU) members gave no indication or remained neutral in terms of indicating any view about the veracity of the allegations.
- In 63% of cases where police intended to charge, the SOCAU member was confident, or reasonably confident, that the victim was telling the truth.
Reasons that cases did not proceed
- Police views and attitudes towards the victim;
- Victims feeling unable to proceed themselves; and
- The impact of the process itself on discouraging victims from participating any further in the investigation.
False complaints represented just over 2% of the 850 records considered across the entire sample. There were at least another 70 cases where members of the police force suspected or were sure that the allegations were false, however the outcome of the investigation was classified in different terms, such as 'no offence detected' or as a case for NFPA.
Cases classified as false reports are distinguished by the degree of certainty with which members of the police force expressed that the allegations were false and an increased likelihood that the victims in these cases could, or in fact were, charged with making a false report.
The characteristics of these cases are:
- all 17 of the victims in this category were women, aged between 15 and 45;
- seven of the 17 victims were recorded as having a disability, primarily mental health or psychiatric issues;
- of the 17 victims, 11 were previously known to police, mainly because they had made previous allegations of rape and non-rape offences or had prior convictions. One woman was known due to having taken out an intervention order related to the alleged offender himself (a former partner);
- the main relationship categories were strangers, current or former partner, friends, acquaintances or men whom victims had met on the night; and
- the majority of victims reported the rape within 24 hours and most referred to a single incident;
CUI - Criminal Investigation Unit (detectives)
CW - Complaint withdrawn: where the victim indicates that he or she does not wish for the investigation to proceed, or following the initial report, would prefer that there is no further action taken.
SOCA Sexual Offences and Child Abuse
NFPA - No Further Police Action: where police decide to take no further action on a complaint.
Download: Study of Reported Rapes in Victoria 2000-2003 ( 448 Kb )
Source: Statewide Steering Committee to Reduce Sexual Assault
Child Abuse and the Family Court 1998
- Child abuse allegations made in the Family Court were no more frequently false than abuse allegations made in other circumstances, with false allegation being found to be 9%.
The Law and Sexual Offences Against Adults in Australia
The prosecution bears the burden of proving beyond reasonable doubt that the victim complainant was not consenting to sexual intercourse. In practice, this means that the legal starting point assumes that the victim complainant was consenting, which the prosecution needs to disprove in order to achieve a conviction. This has resulted in "unwarranted reliance on stereotyped views of what might amount to consensual sexual behaviour" which has tended to position real rape victims as those who fight back, who vigorously defend themselves, who are virginal or who are assaulted by strangers.
Download: The Law and Sexual Offences Against Adults in Australia ( 839 Kb )
Source: Australian Centre for the Study of Sexual Assault
To Report or Not to Report: A Study of Victim/Survivors of Sexual Assault and Their Experiences of Making an Initial Report to the Police, Gilmore, K. & Pittman, L., CASA House, Melbourne, 1993
What Lies Behind the Hidden Figure of Sexual Assault? Issues of Prevalence and Disclosure, Australian Centre for the Study of Sexual Assault, 2003
Sexual Offences: Law and Procedure, Discussion Paper. Victorian Law Reform Commission, Melbourne, 2001
An Obstacle to Reform: 'False' Complaints of Rape. Warner, Kate, Legal Service Bulletin 6 (3) Jun 1981: 137-139
This is not an exhaustive list of research in the area of family violence and sexual assault, merely a starting point. As the locations of web pages often change, many of these reports have been made available through this page to assist readers. Please note that these pdfs may not contain the latest version or any recent changes so it is recommended that researchers check the author's website for updates, suplements or amendments. All published details correct as at Sept 2011.