26.1 The Terms of Reference for this Inquiry require the Commissions to inquire and report on ‘the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family/domestic violence context, including rules of evidence, on victims of such violence’.
26.2 Chapters 26 to 28 highlight ways in which particular laws and procedures operate for victims of sexual assault. In many instances, Australian jurisdictions take different approaches to law and procedure in the areas discussed. As a result, these chapters examine which approaches best recognise the nature of sexual violence and address the negative experience of complainants in the criminal justice system. Where it is possible to identify certain approaches as more promising and progressive than others, the Commissions recommend that the Australian and state and territory governments should implement consistent measures of these kinds.
26.3 This chapter begins by mapping out the key ‘decision points’ in the prosecution of sexual assault offences. These decision points extend from reporting to the police, through the handling of cases by various offices of the Director of Public Prosecutions (DPP) and to procedures involved in the trial of sexual offences. At each of these decision points, cases are filtered out and this process—referred to as ‘attrition’—may lead to offences not being reported and cases being unnecessarily withdrawn or dismissed.
26.4 This chapter also discusses some of the problems that may lead to attrition of sexual assault cases at the reporting, investigation, prosecution and other pre-trial stages. Chapter 27 focuses on issues that arise at trial, notably in relation to the application of laws of evidence. Chapter 28 considers other trial processes, including the giving of jury warnings and the cross-examination of complainants and other witnesses in sexual offence proceedings. Overall, these chapters examine selected developments aimed at reducing attrition and improving the experiences of those who have suffered a sexual assault.
26.5 The focus of this aspect of the Inquiry is sexual assault committed in a family violence context—that is, for those who have been sexually assaulted by a current or former intimate partner (spouse, de facto, boyfriend/girlfriend) or family member. However, most of the issues apply to all sexual assault proceedings, regardless of the relationship between the complainant and the perpetrator.
26.6 The Commissions acknowledge that many areas of law and procedure relating to sexual assault proceedings are not addressed in this Report. Given the timeframe and ambit of the Terms of Reference, the Commissions’ work focused on inconsistencies in the interpretation or application of laws in those areas which have the most direct impact on victims of sexual assault in a family violence context.
26.7 The Commissions acknowledge that reform in this area has been substantial over the last three decades, resulting in legislative and procedural changes which have improved legal responses to sexual assault committed in a family violence context. However, as discussed in the preceding chapters, much remains to be done to address both legislative and practice-based gaps and inconsistencies which have a negative impact on victims of sexual assault.