11.11.2010
26.11 Research has established that only a small proportion of sexual assaults enter the criminal justice system, and those that do face a range of barriers and filtering mechanisms, which means that few result in a charge, prosecution, or conviction.[4] This steady process of attrition has been the subject of much concern and is well documented.[5]
26.12 Substantial reforms over the last three decades—including legal and procedural reforms and policy changes—have been intended, at least in part, to address factors and barriers that have contributed to victims making decisions to withdraw, or key decision makers making determinations that cases not proceed.
Statistics on attrition rates
26.13 While research indicates that the number of sexual assault cases that reach the point of adjudication is minimal,[6] much of the research into sexual assault has emphasised the difficulty of accurately measuring the extent of sexual assault or rates of attrition.[7]
26.14 The primary sources of sexual assault statistics are official police statistics, crime victimisation surveys, and more customised or targeted surveys.[8]
26.15 The limited availability of comprehensive statistics is evidently in part due to the very nature of under-reporting of sexual assault, an issue discussed further below, which is inherently difficult to measure accurately. However, the lack of data with respect to those cases which do enter the criminal justice system may also be attributed to factors such as inconsistencies in definitions of sexual assault as well limitations associated with current methods of data collection and evaluation.[9]
26.16 By way of overview, Lievore concluded that the available Australian studies, taken together, indicate that:
case attrition is highest at the police stage, but prosecutors regularly exercise their discretion to discontinue cases;
in recent years there has been an increase in the numbers of persons charged with sexual assault, but this is not reflected in conviction rates;
the proportion of defendants pleading guilty to sexual assault is low relative to other offence types; and
the high proportion of cases proceeding to trial is reflected in high numbers of acquittals compared to other offences.[10]
26.17 More specifically, some of the key published statistics available on attrition rates at various points of the criminal justice system are set out below. The figures relate to data collection across different time periods, jurisdictions and sample sizes, making it difficult to draw any firm conclusions from them. However, the figures do provide a useful statistical overview of sexual assault matters at the investigation, prosecution and trial stages, which is illustrative of the process of attrition.
Investigation
The Australian Bureau of Statistics (ABS) reported that in 2009, 30 days after the initial complaint an offender been proceeded against in only 19.8% of sexual assault investigations.[11] Similarly, for incidents of sexual assault recorded by police in 2002, offenders were proceeded against for approximately one in four victims of sexual assault.[12]
A 2000–03 Victorian study found that police did not proceed with more than 60% of sexual assault investigations.[13] Offenders were charged in only 15% of cases.[14]
New South Wales research showed that only 28% of sexual and indecent assaults against children and 30% of those against adults, reported to NSW police in 2004, were ‘cleared’ within six months.[15]
A 2003 South Australian study noted that 40% of child sexual assault incidents reported in 2000–01 had not been cleared by police when followed up a year later; and 23% of cases were cleared other than through a suspect being apprehended, including because the victim requested no further action.[16]
In 2007, the Australian Institute of Criminology (AIC) estimated that less than 20% of sexual offence incidents which are reported to the police result in charges being laid and criminal proceedings being instigated.[17]
Prosecution
The Victorian Law Reform Commission (VLRC) found that, based on cases between 1997–99, fewer than one in six reports to police of rape, and fewer than one in seven reports of incest or sexual penetration of a child, proceeded to prosecution.[18]
NSW research found that it was common for incidents to be recorded as cleared by the police, even though there had been no criminal proceedings commenced through the issuing and filing of a court attendance notice.[19] Among all sexual offences reported to police, criminal proceedings are initiated in only 15% of incidents involving child victims and 19% of incidents involving adult victims.[20]
A 2003 South Australian study found that 27% of reports of child sexual assault incidents proceeded to prosecution.[21]
Trial
The ABS reported that in 2008–09 (of a total of 3,085 defendants in sexual assault and related cases finalised in higher criminal courts) 49.4% entered a guilty plea, 15.1% were acquitted and 11.9% pleaded not guilty and were convicted. A total of 21.7% of cases were withdrawn by the prosecution.[22]
Similar figures were reported by the ABS for 2002–03, where (of 1,567 defendants) 60% of sexual assault defendants entered a guilty plea, 20% pleaded not guilty and were convicted and 19% were acquitted.[23] Defendants in higher criminal courts, with a principal offence of sexual assault and related offences, were three times more likely to have an acquittal outcome (20%) than defendants for all offences (7%).[24]
The VLRC found in 2004 that, even if a sexual offence is reported and the defendant is prosecuted, guilty pleas and conviction rates are lower than for other criminal offences.[25]
NSW research found that 44% of persons prosecuted for a sexual offence against a child, and 42% of persons prosecuted for a sexual offence against an adult, were found guilty on at least one count.[26]
South Australian research found that less than 10% of cases reported to South Australian police in 2000–01 resulted in a conviction on at least one of the offences arising from a reported child sexual assault incident.[27]
An analysis of finalised child sexual offences in the Northern Territory between 2001–02 and 2005–06 found that 28% resulted in a guilty verdict (the vast majority of which resulted from a guilty plea) while 47% of cases were withdrawn by the prosecution.[28]
Data collection
26.18 In the Consultation Paper, the Commissions proposed that the Australian Centre for the Study of Sexual Assault (ACSSA), the AIC and similar state and territory agencies should prioritise the collection of comprehensive data on attrition rates and outcomes in sexual assault cases, including in relation to sexual assault perpetrated in a family violence context.[29]
Submissions and consultations
26.19 Many stakeholders supported the proposal,[30] highlighting high rates of attrition and the fact that
there is great complexity involved in estimating attrition rates of sexual assault cases and case outcomes in Australia. This complexity results from the need to collect police and court data from different jurisdictions with different record keeping systems and legislation. Data collection systems may not be compatible or readily available. Yet it is important to grapple with these issues to begin to understand attrition in sexual assault cases.[31]
26.20 Several stakeholders articulated the need for comprehensive data which details not only the reasons for attrition but also the point of attrition. In particular, the National Association of Services Against Sexual Assault (NASASV) submitted that data ‘should be collected that specifies exactly when the case fell out, how far along the process it got and exactly why it was not pursued/successful’.[32]
26.21 Several stakeholders recognised that adequate resourcing is essential to ensure adequate data collection and analysis.[33] However, the Magistrates’ Court and Children’s Court of Victoria noted that, despite ‘challenges and resourcing implications involved in identifying this data and arranging for its collection and analysis’, the Courts nonetheless regard data collection as an ‘urgent priority’—highlighting that the ‘paucity of adequate data is a significant impediment to appropriate and effective policy development and coordinated support for relevant court users’.[34]
26.22 Stakeholders noted the positive role the process of data collection can play in ‘institutional change in and of itself’[35] and emphasised that in the course of collecting data on attrition rates and outcomes in sexual assault cases, care should be taken to ensure that specific data and trends can be identified in relation to Aboriginal and Torres Strait Islander people.[36] Finally, in addition to collecting data in relation to criminal sexual assault matters, the Magistrates’ Court and Children’s Court of Victoria suggested that data collection and evaluation should ‘include reference to other relevant jurisdictions where allegations of sexual assault are made’.[37]
Commissions’ views
26.23 Improved data collection in relation to the reporting and prosecution of sexual assault, including in a family violence context, is clearly desirable. The collection of more comprehensive statistics on attrition rates and outcomes in sexual assault cases, as well as access to such data, is critical to identifying problems as well as designing and monitoring solutions in relation to how the criminal justice system deals with sexual assault.
26.24 Bodies such as ACSSA and the AIC, along with state and territory counterparts, have an important role to play in this regard. One of the roles of ACSSA, in particular, is to ‘improve access to current information on sexual assault in order to assist policymakers and others interested in this area to develop evidence-based strategies that respond to, and ultimately reduce, the incidence of sexual assault’. Another body, the Australian Domestic and Family Violence Clearinghouse, plays a role in providing information about domestic and family violence issues and practice, including through an online good practice database.
26.25 The Commissions recognise the role that police, DPPs, courts and other bodies play in collecting raw data. However, in light of the specific roles of bodies such as ACSSA, the Commissions recommend that ACSSA, the AIC and similar state and territory agencies should prioritise the collection of comprehensive data in relation to sexual assault, particularly where perpetrated in a family violence context. In particular, the Commissions emphasise the need to collect data using a consistent methodology as well as identifying the reasons for attrition, the decision point at which attrition occurred, outcomes of cases and trends in relation to particular groups such as Aboriginal and Torres Strait Islander people.
Recommendation 26–1 The Australian Centre for the Study of Sexual Assault, the Australian Institute of Criminology and similar state and territory agencies should prioritise the collection of comprehensive data in relation to sexual assault perpetrated in a family violence context. In particular on:
(a) attrition rates, including reasons for attrition and the attrition point;
(b) case outcomes; and
(c) trends in relation to particular groups including Aboriginal and Torres Strait Islander peoples.
[4] Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005) 8.
[5] See, eg, Ibid, 8–17; National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009), 37–43.
[6] See, eg, Australian Bureau of Statistics, Sexual Assault in Australia: A Statistical Overview (2004); J Mouzos and T Makkai, Women’s Experiences of Male Violence: Findings of the Australian Component of the International Violence Against Women Survey (2004), 102.57 citing the findings of the 2002 National Crime and Safety Survey; Australian Institute of Criminology, Guilty Outcomes in Reported Sexual Assault and Related Offence Incidents (2007).
[7] For further discussion see: D Lievore, Prosecutorial Decisions in Adult Sexual Assault Cases: An Australian Study (2004), prepared for the Office of the Status of Women; D Lievore, Non-Reporting and Hidden Recording of Sexual Assault: An International Review (2003), prepared for the Commonwealth Office of the Status of Women; B Cook, F David and A Grant, Sexual Violence in Australia: Australian Institute of Criminology Research and Public Policy Series, 36 (2001); Australian Institute of Family Studies, Submission FV 222, 2 July 2010. In relation to Aboriginal and Torres Strait Islander peoples, see, eg, F Al-Yaman, M Van Doeland and M Wallis, Family Violence Among Aboriginal and Torres Strait Islander Peoples (2006), prepared for the Australian Institute of Health and Welfare.
[8] D Lievore, Non-Reporting and Hidden Recording of Sexual Assault: An International Review (2003), prepared for the Commonwealth Office of the Status of Women.
[9] Australian Institute of Family Studies, Submission FV 222, 2 July 2010.
[10] D Lievore, Prosecutorial Decisions in Adult Sexual Assault Cases: An Australian Study (2004), prepared for the Office of the Status of Women, 3.
[11] Australian Bureau of Statistics, Recorded Crime: Victims, Catalogue No 4510.0 (2008), 34.
[12] Measured at six months from the date the incident became known to the police: Australian Bureau of Statistics, Sexual Assault in Australia: A Statistical Overview (2004), 54.
[13] Of these cases, 15% of rape complaints were withdrawn; and 46% resulted in no further police action: Statewide Steering Committee to Reduce Sexual Assault (Vic), Study of Reported Rapes in Victoria 2000–03: Summary Research Report (2006), 5. Offenders were proportionately more likely to be a current or former partner of the victim in cases where the complaint was subsequently withdrawn compared to cases where charges were laid.
[14] Ibid.
[15] J Fitzgerald, ‘The Attrition of Sexual Offences from the New South Wales Criminal Justice System’ (2006) 92 Crime and Justice Bulletin 3, 3. A cleared criminal incident is one that police are no longer investigating, either because they have commenced criminal proceedings against a suspect or the complaint has been withdrawn. Incidents that are not cleared are unlikely to proceed any further.
[16] J Wundersitz, Child Sexual Assault: Tracking from Police Incident Report to Finalisation in Court (2003), prepared for the Office of Crime Statistics and Research, 9.
[17] Australian Institute of Criminology, Guilty Outcomes in Reported Sexual Assault and Related Offence Incidents (2007).
[18] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [1.6].
[19] Within 180 days of reporting, criminal proceedings had been commenced against a person of interest in 53% of cleared incidents involving a child victim and in 59% of incidents involving an adult victim: J Fitzgerald, ‘The Attrition of Sexual Offences from the New South Wales Criminal Justice System’ (2006) 92 Crime and Justice Bulletin 3, 4.
[20] Ibid. The odds of criminal proceedings being commenced were higher where: the victim was aged over five years; reporting of the incident occurred within ten years of its occurrence; the offender was known to the victim; the victim was female; and aggravating circumstances were present: J Fitzgerald, ‘The Attrition of Sexual Offences from the New South Wales Criminal Justice System’ (2006) 92 Crime and Justice Bulletin 3, 7.
[21] J Wundersitz, Child Sexual Assault: Tracking from Police Incident Report to Finalisation in Court (2003), prepared for the Office of Crime Statistics and Research, 9.
[22] Australian Bureau of Statistics, Criminal Courts of Australia Catalogue No 4513.0 (2008–2009), 24.
[23] Australian Bureau of Statistics, Sexual Assault in Australia: A Statistical Overview (2004), 77.
[24] Ibid, 54.
[25] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [1.6].
[26] J Fitzgerald, ‘The Attrition of Sexual Offences from the New South Wales Criminal Justice System’ (2006) 92 Crime and Justice Bulletin 3, 4.
[27] J Wundersitz, Child Sexual Assault: Tracking from Police Incident Report to Finalisation in Court (2003), prepared for the Office of Crime Statistics and Research, 9.
[28] Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Little Children are Sacred: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse (2007), 252.
[29] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010) Proposal 17–1.
[30] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; N Ross, Submission FV 129, 21 June 2010; P Easteal, Submission FV 38, 13 May 2010.
[31] Australian Institute of Family Studies, Submission FV 222, 2 July 2010.
[32] National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010. Also Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010.
[33] For example, Women’s Legal Services NSW, Submission FV 182, 25 June 2010.
[34] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.
[35] National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010.
[36] Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.
[37] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.