Introduction

24.1 This part of the Report concerns the second Term of Reference of the Inquiry. This requires the Commissions to focus on the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family violence context, including rules of evidence, on victims of such violence.

24.2 This chapter outlines key background understandings of sexual assault in a family violence context, its nature and prevalence, and the response of the criminal justice system and other areas of law.

24.3 Chapter 25 describes the range of existing sexual offences and identifies inconsistencies in relation to elements of these offences, notably in relation to the issue of consent. It also discusses the role that guiding principles and objects clauses can play in the interpretation of sexual offences and the application of rules of evidence in sexual assault proceedings.

24.4 Chapters 26, 27 and 28 highlight ways in which particular laws and procedures operate for victims of sexual assault. In some cases, where it is possible to identify certain approaches as more promising and progressive than others, the Commissions recommend that the Australian, state and territory governments should implement consistent measures based on the best model. Uniformity is not, of itself, a goal, but rather consistency with respect to identified best policy.

24.5 For simplicity, the Commissions’ recommendations are most often worded to recommend that ‘federal, state and territory’ legislation should provide for certain matters, notwithstanding that:

• federal criminal law does not provide for ordinary sexual offences^[1] and, in practice, only a small number of criminal and quasi-criminal matters are heard in federal courts;^[2] and

• one or more jurisdictions may already have enacted legislation that fits the criteria recommended by the Commissions.

Chapter outline

24.6 This chapter canvasses what is known about the prevalence of sexual assault in the family violence context and situates the experience of sexual assault as part of family violence more generally. It highlights aspects of family violence that are important in understanding and responding to this category of sexual violence—for example, the many types of sexual violence experienced by women and children, its repetition within the family violence context, its cumulative impact and coexistence with other forms of family violence. Sexual assault by current and former intimate partners, for instance, requires responses that take account of these interrelated contexts and acknowledge the distinct experience of sexual violence by an intimate partner.

24.7 The chapter then introduces the response of the criminal justice system—an examination that is expanded in Chapters 25 to 28. It outlines some of the unique features of sexual assault and the legal response, as well as the myths and stereotypes about women, children and sexual assault that continue to hold some sway in the community and in the legal system. The chapter introduces the substantial reform of law and procedure that has been undertaken in this area over the last three decades to provide more appropriate criminal justice responses to sexual assault.

24.8 The chapter briefly discusses other areas of the law which also respond to sexual assault (including protection orders, family law, statutory compensation and tort law). This discussion recognises that the criminal justice system is not the only legal response, nor is it simply the law that is (or should be) called on to respond to and reduce sexual violence.

24.9 Finally, the chapter discusses the ‘implementation gap’—the gap between written law and its practice—that remains despite extensive changes to law and procedure related to sexual assault.

Terminology

24.10 In this chapter the Commissions use two terms to signify different aspects of sexual violence in a family violence context. First, the term ‘sexual violence’ is used to describe the full range of sexually coercive or unwanted acts that many women and children experience, not all of which are against the law. Secondly, the terms ‘sexual assault’ or ‘sexual offence’ are used to refer to those acts that are proscribed in the various Australian criminal laws (for example, sexual intercourse without consent, rape, indecent assault, offences against children, and offences against people with a cognitive impairment). This approach recognises both ‘experience-based’ and ‘offence-based’ definitions of sexual violence.^[3]

24.11 The Australian Bureau of Statistics (ABS) provides the following experience-based definition of sexual violence:

Sexual assault is unwanted behaviour of a sexual nature directed towards a person:

• which makes that person feel uncomfortable, distressed, frightened or threatened, or which results in harm or injury to that person;

• to which that person has not freely agreed or given consent, or to which that person is not capable of giving consent;

• in which another person uses physical, emotional, psychological or verbal force or (other) coercive behaviour against that person.

Sexual assault may be located on a continuum of behaviours from sexual harassment to life-threatening rape. These behaviours may include lewdness, stalking, indecent assault, date rape, drug-assisted sexual assault, child sexual abuse, incest, exposure of a person to pornography, use of a person in pornography, and threats or attempts to sexually assault.^[4]

24.12 Offence-based definitions are directly linked to the elements of the offences prescribed by the criminal law including, for example: penetration, absence of consent and the circumstances that negate consent (as defined in law).^[5]

24.13 An understanding of both definitions is important in recognising the continuum of unwanted sexual behaviours that may exist in the family violence context. It is also important in ensuring appropriate responses, including service delivery and support for people who have experienced sexual violence that is not necessarily addressed by the criminal law.^[6]