The prosecution phase

26.43 Determining whether to commence or continue prosecution of sexual assault offences is a significant decision point within the criminal justice process. The exercise of prosecutorial discretion is also one of the key points of attrition for sexual assault cases. Prosecutors play a key role as gatekeepers, ‘determining which victims of crime have access to justice and which defendants will be processed through the criminal justice system’.^[55]

26.44 Commonwealth, state and territory DPPs exercise considerable discretion in deciding whether to prosecute alleged offenders and how any such prosecution should proceed. This discretion is subject to prosecution policies or guidelines in each jurisdiction. DPPs are regularly subject to criticism about the exercise of their discretion in sexual assault matters and the exercise of prosecutorial discretion has been characterised as ‘one of the most important but least understood aspects of the administration of criminal justice’.^[56]

The decision to prosecute

26.45 Prosecutorial decision making in sexual assault matters is influenced by a range of factors. Each Australian jurisdiction has adopted guidelines and policies which contain similar criteria for the exercise of the discretion to prosecute an alleged offender. While there is variation between policies, prosecutorial discretion is guided by two primary considerations: first, the sufficiency of the evidence and, secondly, the public interest.

26.46 The first consideration informing the decision is whether the evidence is sufficient to justify the commencement or continuation of a prosecution. There must be enough admissible, substantial and reliable evidence not only to support a prima facie case but also to provide a reasonable prospect of a conviction being secured.^[57]

26.47 An evaluation as to whether there is a reasonable prospect of conviction requires an assessment of a number of factors including: the availability, competence, credibility and reliability of witnesses; the likely impression that the witnesses will make on the judge or jury; the admissibility of evidence such as a confession by the accused; and any lines of defence open to the accused.^[58] Such an evaluation is also, at least in part, based on the prosecutor’s assessment of the likely views of judges and juries at trial. Consequently, ‘without prosecutions which test and redefine understanding of the boundaries of rape legislation, opportunities to clarify the law and improve the chance of future convictions are lost’.^[59]

26.48 Once the prosecutor is satisfied that the evidence is sufficient to justify the institution or continuation of a prosecution, the second key consideration is whether it is in the public interest to pursue the prosecution.^[60] The factors which are taken into account in determining the public interest are multifaceted and non-exhaustive. These include: the seriousness of the alleged offence; mitigating or aggravating circumstances impacting upon the appropriateness of the prosecution; the age, mental state, physical health or vulnerability of the alleged offender or victim; the period of time elapsed since the offence; the background and prior convictions of the alleged offender; the attitude of the victim to the prosecution; the actual or potential harm occasioned by the alleged offence; the length and expense of a trial; and the necessity to maintain public confidence in the administration of justice.^[61]

26.49 Guidelines also specify a number of factors that must not influence a decision to prosecute. These include: the race, religion, sex or beliefs of the alleged offender; personal feelings concerning the alleged offender or victim; possible political advantage to the government or a political group; or the possible personal or professional effect of the decision to prosecute on those making that decision.^[62]

Prosecution of sexual offences

26.50 In recognition of the fact that the exercise of prosecutorial discretion is one of the key points of attrition for sexual assault cases, considerable attention has been focused in recent years on the way in which sexual offences are prosecuted.^[63] In particular, the study by Lievore in 2004 on the exercise of prosecutorial discretion in adult sexual assault cases across the Australian jurisdictions analysed 141 case files from five jurisdictions in which the primary charge was rape or the equivalent penetrative sexual assault offence. This involved 148 victims and 152 defendants. Overwhelmingly the victims in this study were women (99%).^[64] Most had been sexually assaulted by someone known to them (76%) with 15% having been assaulted by a current partner, 15% by a family member, 11% by a former partner and 35% by another known person.^[65]

26.51 Fifty-three of the cases in this study were withdrawn (38 prior to indictment; 15 after indictment). Almost half of the cases (24) were withdrawn because the victim did not wish to proceed, and in the remaining 29 cases the decision was based on prosecutorial assessment of the prospect of conviction and/or victim credibility.

26.52 There were significant differences in the circumstances of the sexual assault between the cases that were withdrawn and those that proceeded. In those that proceeded, the victim was more likely to have been injured, to have expressed non-consent either in words or through resistance, the assault was more severe in some way (for example, it involved a weapon), additional evidence was available, the defendant used force, the defendant was ‘non-Caucasian’,^[66] and the defendant was a stranger.^[67]

26.53 In terms of outcomes, 33% of cases were finalised by guilty plea (half of these pleas were entered after negotiations which resulted in the level of the charges or number of charges being reduced); and 29% of cases proceeded to trial (38% of which resulted in a guilty verdict).^[68]

26.54 Importantly in the context of family violence, cases ‘involving strangers and other known defendants were more likely than cases involving intimate or family relationships to proceed through the criminal justice process and to end in conviction’.^[69] Some of the other conclusions of the Lievore study are particularly relevant to cases involving sexual assault in a family violence context and to the range of evidence law and other issues discussed in Chapters 27 and 28.

There is ample empirical evidence, including the results of this study, that attrition of sexual assault cases at the prosecution stage is usually related to evidentiary matters, which are most complex in cases where the victim and the defendant are acquainted. These cases usually come down to word against word, with little or no corroborating evidence. The defence usually centres on consent or the defendant’s mistaken belief in consent, which is more likely to succeed if there has been prior consensual sex. Cases involving current or former partners are often discontinued due to victim withdrawals and insufficient prospects of conviction. It is understandable then that experienced prosecutors, who are mindful of the limits imposed by the substantive, evidence and procedure laws of sexual assault, would assess the prospects of conviction by considering prior relationship in combination with other factors, such as the strength of the evidence. At the same time, it is also clear that cultural assumptions about consensual sex impact on legal definitions of consent and the conduct of trials.^[70]

26.55 As discussed, prosecutorial decision making in sexual assault matters is influenced by a range of factors, some of which are ‘extraneous to the legal elements of the case’.^[71] It is said to be ‘unclear from current research what differences exist in prosecutorial decision-making processes for sexual assault occurring within a family violence context compared to those occurring outside of a family violence context’.^[72] However, factors that may contribute to attrition of family-violence related sexual assault cases at the prosecutorial stage include:

• evidentiary matters, including in relation to corroboration and consent as well as witness evidence and credibility;

• socio-demographic characteristics of the victim and offender;

• the relationship between the victim and offender;

• cultural assumptions about issues such as consensual sex, responses to sexual assault as well as ‘typical’ psychological and emotional reactions to sexual assault;^[73] and

• the views and preferences of victims.^[74]

26.56 The availability of forensic evidence is another evidentiary matter of particular importance in influencing prosecutorial decision making as to the sufficiency of evidence in sexual assault cases.^[75] This presents particular difficulties ‘in the context of intimate sexual assaults [where] obtaining forensic evidence to strengthen an investigation, police brief or prosecution case is much less likely’.^[76]

Charge and fact bargaining

26.57 While the police make initial decisions about what charges are to be laid against a person, the prosecution also has the discretion to lay additional charges and amend the charges in a number of ways, including by reducing the number or the seriousness of the charges.^[77]

26.58 The critical question in determining the appropriate charges generally involves an assessment of what charges the evidence can support. However, there may also be negotiation between the defence and the prosecution known as ‘charge and fact bargaining’ whereby the number and level of charges may be reduced in return for the defendant entering a guilty plea to some or all charges.^[78] Such bargaining may also involve the prosecution agreeing to present a recommendation for sentence, including on the basis of an agreed summary of facts.

26.59 Lievore found that half of the guilty pleas in her study (33% of cases in her study were finalised this way) were the result of negotiations to reduce the level or number of the charges.^[79] Interviews with Crown Prosecutors revealed a willingness to ‘look for opportunities to negotiate charges rather than risk an acquittal’.^[80]

26.60 While charge and fact bargaining may be criticised as placing the interests of expediency over those of justice, these processes can also be seen as vital to the administration of the legal system:

Charge negotiations are a legitimate means of resolving criminal litigation. The process is widely viewed as fundamental to the efficient operation of an under-resourced system and comprises a relatively informal process that incorporates both adversarial and cooperative aspects. In a situation of uncertainty, the prosecution and defence exchange risks and benefits to achieve mutually satisfactory goals. Prosecutors avoid a costly trial and the risk of an acquittal, while the defendant avoids the risk of additional charges or facing a maximum sentence. ^[81]

26.61 Some victims express dissatisfaction about charge negotiation and fact bargaining, often because they are not consulted about the process or the outcome. As discussed in more detail below, while it may be desirable for the prosecution to seek the views of a complainant before charge or fact bargaining, this is not always required and, in some jurisdictions, guidelines expressly state that the victim has no right of veto in the charge negotiation process.^[82] An example of how charge bargaining may be perceived by victims was provided, in the course of the present Inquiry, by a women’s legal service coordinator

[There was] one case where [a young] Indigenous … woman went through the whole process of providing evidence against her ex-partner for assaulting her. There were eight charges pending and each involved a serious domestic violence incident. The matter was resolved by the prosecution doing a deal with the defence. They agreed to dropping five charges and three were downgraded so that the ex-partner ended up with only a four month suspended sentence. The victim was not consulted and neither were we as the victim’s advocate in the matter. To have something like that happen sends a negative message not only to that particular woman but to all other women. Essentially, although the law may in essence appear to be colour blind, in practice it is not always colour blind. Before an Indigenous or Culturally and Linguistically Diverse woman can even get her matter to trial she needs to convince the police to proceed with her matter and then she needs to navigate the complicated pre-trial processes. This is all before the matter proceeds to trial where the woman may have to counter issues/stereotypes that intersect between racism and sexism. On top of this, their access to justice is also hampered by the lack of suitable interpreters and by the general lack of cultural sensitivity and awareness of professionals within the system.^[83]

The views of victims

26.62 There is some variation across jurisdictions in relation to the extent to which regard must be had to the wishes of victims in instituting or continuing the prosecution of an alleged offender, or in charge and fact bargaining.

26.63 As outlined above, prosecutorial discretion is guided by two primary considerations: first, the sufficiency of the evidence and, secondly, the public interest.^[84] The guidelines in each jurisdiction stipulate that one of the factors that may be relevant in determining whether the public interest requires a prosecution includes the attitude of the alleged victim to a prosecution.^[85] Most jurisdictions have additional guidelines stipulating requirements to engage victims in decision-making processes. For example, the Commonwealth guidelines state that the views of victims may be taken into account where they are available, and where it is appropriate in determining whether it is in the public interest to commence or discontinue a prosecution, agree to a charge negotiation or decline to proceed with a prosecution after committal.^[86]

26.64 The NSW guidelines state that the victim must be advised and consulted whenever the DPP is considering whether or not to discontinue a prosecution. The victim should also be consulted where the DPP is considering whether to reduce a charge in scope or severity, where charge negotiations are undertaken, or where a statement of agreed facts is being prepared. The views of the victim about the acceptance of a plea of guilty and the contents of a statement of agreed facts will be taken into account before final decisions are made but those views are not alone determinative.^[87]

26.65 The Victorian legislation and guidelines state that the DPP is obliged to have regard to the need to ensure that the prosecutorial system gives appropriate consideration to the concerns of the victims of crime.^[88] In exercising the power to discontinue a prosecution, the views of the victim or, where appropriate, the relatives of the victim are sought. Their views are taken into account but are not determinative.^[89]

Specific provisions in relation to sexual assault

26.66 DPP policies and guidelines in many jurisdictions also contain specific provisions in relation to victims of sexual assault.^[90]

26.67 Guidelines in most jurisdictions dictate that careful consideration should be given to any request by a victim that proceedings be discontinued, particularly in sexual assault matters.^[91] For example, both the NSW and Western Australian guidelines provide that requests by victims of sexual offences to discontinue proceedings, where freely made, should be accorded significant weight. The guidelines note, however, that the expressed wishes of victims may not coincide with the general public interest. In such cases, particularly where there is other evidence implicating the accused person, a history of similar offending, or where the gravity of the alleged offence requires it, the general public interest in prosecution must prevail.^[92]

26.68 Many of the cases in the Lievore study were withdrawn because the victim did not wish to proceed. Importantly, the files indicated that ‘the prosecutors believed that the victims who chose to withdraw from prosecution were telling the truth’.^[93] There is a range of reasons why a victim of sexual assault committed in a family violence context may request a matter be discontinued, including:

• fear of the defendant;

• ongoing relationship with, or attachment to, the defendant, including where children are involved;

• family or community pressure; and

• trauma or other issues associated with the trial process, including the impact of giving evidence and often lengthy delays.^[94]

26.69 The Victorian guidelines provide that in the great majority of cases involving allegations of sexual offences, the public interest will strongly suggest that the prosecution should proceed.^[95] However, the guidelines also specify that careful attention must be given to the public interest test in ‘boyfriend/girlfriend’ cases involving sexual offences.^[96] In these cases, the guidelines note that, although the evidence indicates that ‘an offence has technically been committed’, the objective circumstances of the offence, in combination with the personal circumstances of the complainant and offender, do not satisfy the ‘public interest test’.^[97]

26.70 The Queensland guidelines provide that, where there is sufficient reliable evidence to warrant a prosecution, there will seldom be any doubt that the prosecution is in the public interest.^[98]

26.71 The Northern Territory guidelines also note that prosecutions that involve offences committed in the context of family violence, including sexual assault, require special attention.^[99] The guidelines cover the procedures which must be followed where a victim indicates that they do not wish to give evidence,^[100] and note that suitable prosecutions should proceed without the evidence of an unwilling victim.^[101]

26.72 DPP policies and guidelines across jurisdictions also include a range of other provisions with respect to sexual offences, including child sex offences and the prosecution of sexual assault.

Information and assistance

26.73 It is clear that the most positive experiences of the criminal justice system for victims arise when they are ‘treated respectfully … listened to, believed and taken seriously’ as well as being provided with timely and accurate information.^[102] In addition it is said that ‘ensuring the complainant is well informed and well supported can improve not only their wellbeing and experience as a witness but their capacity to testify confidently’.^[103] Accordingly, Australian jurisdictions all recognise that victims of crime are entitled to receive information about the prosecution of the alleged offender. In each state and territory support and liaison services are in place to keep victims and witnesses informed and to assist them with navigating the criminal justice process.

26.74 The Commonwealth Victims of Crime Policy provides that victims should, on request, be kept informed in a timely manner about the progress of a prosecution.^[104] Where a victim is required to give evidence, any inconvenience to the victim should be minimised as far as possible and victims should be advised about their role as a witness.^[105] The Commonwealth DPP has a Witness Services Officer and is piloting a Witness Assistance Service to provide formalised assistance to witnesses and victims.

26.75 New South Wales guidelines provide that victims, whether witnesses or not, should have explained to them, at an early stage of proceedings, the prosecution process and their role in it.^[106] The NSW Charter of Victims’ Rights, contained within the Victims’ Rights Act 1996 (NSW), provides for numerous safeguards to be afforded to victims. Victims are to be informed about the investigation of the alleged crime, the prosecution of the accused, the outcome of any bail applications, and their role as a witness in the trial.^[107] Although a victim is entitled to make a formal complaint if the Charter is not complied with, non-compliance does not give victims any civil cause of action or legal right.^[108]

26.76 The NSW DPP is required to seek the services of the Witness Assistance Service as early as possible in cases involving sexual assault, domestic violence or child victims and witnesses. The Service can assist with providing information, identifying special needs of victims and witnesses, referring victims for counselling and support, providing court preparation and coordinating court support.^[109]

26.77 In 2006, the Victorian Government passed the Victims’ Charter Act 2006 (Vic), which sets out principles governing how participants in the criminal justice system, including the DPP, should respond to victims of crime.^[110] The Charter principles set out the rights of the victim to be informed of the progress of any investigation, prosecution or bail application involving the alleged offender. In addition, the Charter provides that victims should be provided with information about the court process, their role as a witness and their entitlements to support services and the protection of their personal information.^[111] While the Act does not create legal rights or give rise to any civil cause of action, victims can complain to the DPP if the Charter principles have not been upheld.^[112]

26.78 The Victorian DPP also has a Witness Assistance Service which is available to all prosecution witnesses and victims of crime who are involved in cases handled by the DPP. This service provides information and support including written guides and is staffed by professionals experienced in witness and victim support. The role of the service is to ensure that witnesses have been made aware of their rights and the processes they are likely to experience, and to ensure they are kept aware of the progress of their case.^[113]

Consultation Paper

26.79 In the Consultation Paper the Commissions acknowledged that it may be possible, and desirable, to reduce attrition rates at the prosecution stage by providing additional support and information to victims. As a result, the Commissions proposed that the policies and guidelines of DPPs in dealing with sexual assault cases should:

• facilitate the referral of victims and witnesses to appropriate legal and support services;

• require consultation with victims in relation to prosecutorial decisions;

• require and facilitate the provision of information and assistance to victims about legal and court processes and the status of proceedings; and

• ensure that necessary protection and intervention orders are sought in all relevant circumstances.^[114]

26.80 The Commissions also asked what further prosecutorial guidelines, policies or other measures should be taken to reduce the attrition of sexual assault cases, including where committed in a family violence context, during the prosecution phase.^[115]

Submissions and consultations

26.81 A majority of stakeholders who addressed these issues supported additional measures to reduce attrition and trauma to complainants during the prosecution phase, and emphasised the importance of ‘relevant and timely support for victims and witnesses’.^[116]

26.82 Stakeholders proposed a range of measures to reduce the attrition of sexual assault cases, including those committed in a family violence context, during the prosecution phase. Primarily these concerned: victim information and support; integrated responses;^[117] education, training and awareness raising;^[118] and specialisation.^[119] In many instances, the measures suggested are also discussed in a general sense in other parts of this Report.^[120] A more detailed examination of some of these issues in the sexual assault context appears below.

Provision of additional information and support

26.83 Numerous stakeholders expressed support for DPP guidelines requiring the provision of additional information and support to victims and witnesses.^[121] As submitted by Women’s Legal Services NSW:

the availability of clear and consistent advice about the process and any protective provisions available and general information about investigation and trial processes would provide complainants with a greater degree of support and security to participate.^[122]

26.84 In particular, some stakeholders proposed that guidelines should require information to be given about claiming the privilege for sexual assault counselling communications.^[123] Many submissions also emphasised the importance of ensuring that victims and witnesses are aware of the protective provisions available when giving evidence in criminal proceedings.^[124]

Consultation and engagement with victims

26.85 Stakeholders expressed a consistent view that victims and witnesses would benefit enormously from assistance in navigating the criminal process—in effect, having someone ‘walk with them through the system’.^[125]

26.86 While recognising resource constraints, stakeholders emphasised the importance of ‘consistency of lawyers throughout the process, early assignment of briefs to allow adequate preparation’^[126] and the need for prosecutors to establish a relationship, or at a minimum, regular communication with victims in the lead up to the hearing.^[127]

26.87 Some stakeholders also highlighted the benefits of special victim and witness support, liaison and advocacy services located within ODPPs. ^[128]

26.88 With respect to the proposal to require consultation with victims about key prosecutorial decisions, NASASV noted that any such consultation

should be with a view to achieving the highest charge possible and supporting and encouraging the victim to continue with the charges. By this we do not in any way endorse any kind of pressure on the victim, but it has been observed that often options are presented in a cautious and ‘neutral’ way that does not accurately represent the strength of the complainant’s case and chances of success.^[129]

26.89 This was echoed in a confidential submission from a women’s legal service which observed that, in sexual assault cases, prosecutors often ‘adopt a neutral manner towards the victim which can be extremely isolating and discouraging’.^[130]

26.90 A number of stakeholders reiterated that the decision by victims to withdraw from prosecution is one of the key issues impacting upon attrition of sexual assault matter. AIFS submitted that

it is likely that further research is required here to establish what support women require to prevent them from withdrawing charges against current or former partners, without diminishing the choice and autonomy of the woman.^[131]

26.91 Further, in order to balance the need to avoid victims being pressured into withdrawing with a victim’s right to decide to do so, stakeholders emphasised the importance of ascertaining the victim’s wishes without the defendant being present and the role played by victim impact statements in conveying the victim’s expressed desire to withdraw.^[132]

26.92 Finally, several stakeholders in the Northern Territory expressed the view that the Northern Territory Emergency Response, and subsequent increase in police presence and attention on prosecution of sexual assault, had a tendency to impact on the exercise of prosecutorial discretion.

Sensitive and appropriate services and support

26.93 Aboriginal and Torres Strait Islander individuals and organisations emphasised that in engaging with Aboriginal and Torres Strait Islander women

there needs to be regular, ongoing and culturally appropriate support throughout the whole process from the beginning of the investigation phase to the end of the prosecution phase. There is enormous pressure placed on Aboriginal women who report family violence by her partner/ex-partner, his family and sometimes their community. In cases of sexual violence, where the legal stakes and consequences can be even higher, that pressure can be unbearable.^[133]

26.94 Stakeholders emphasised the need for training and education in relation to the often unique experiences and needs of Aboriginal and Torres Strait Islander victims and witnesses as well as those from CALD backgrounds.^[134] Stakeholders noted that any referral of victims and witnesses to ‘health, legal, counselling and other support services should be to culturally appropriate services where available’.^[135] The Immigrant Women’s Support Service highlighted the need for service providers to provide ‘relevant information in appropriate community languages’ as well as the need for professional interpreters.^[136]

26.95 Stakeholders noted the importance of Aboriginal and Torres Strait Islander- specific liaison and support positions throughout the legal system, including within the police, courts and service providers, such as witness assistance services.^[137] The Aboriginal Family Violence and Prevention Legal Service Victoria referred to the need to delineate between victim and defendant support and advice services. The submission emphasised that such a distinction is necessary to ensure ‘confidentiality and to avoid perceived conflicts of interest’, in particular because ‘victims may mistrust … Aboriginal and Torres Strait Islander staff … whose role is to support both victims and offenders’.^[138]

26.96 Finally, individuals and organisations representing the gay, lesbian, bisexual, transgender and intersex (GLBTI) community emphasised the need for sensitive and appropriate service provision recognising and catering for gender and sexuality diverse individuals.^[139]

Commissions’ views

26.97 The fact that the prosecution phase is a significant attrition point within the criminal justice process is emphasised in the available data. It is apparent that many cases are withdrawn because of the attitude of the victim.^[140] While some of these cases would undoubtedly also have encountered evidentiary issues—and hence may have been subject to ‘subtle’ encouragement to withdraw—other factors, such as feared re-victimisation from the defendant or the court process, family or community pressures or an ongoing relationship with the defendant, often contribute to victims’ decisions to withdraw. This suggests that it may be possible—and desirable—to reduce attrition rates at the prosecution stage by providing additional support and information to victims. This is recognised in the Commissions’ recommendation with respect to prosecutorial guidelines and policies below.

26.98 The data also appear to indicate that substantial numbers of sexual assault cases are discontinued by prosecutors—both before and after indictment. As discussed, while it may be difficult to assess the basis for prosecutorial decisions, it is evident that factors such as evidentiary matters, the characteristics of the victim and offender as well as cultural assumptions influence prosecutorial decision making in sexual assault cases. This suggests that measures to ensure that prosecutorial discretion is exercised taking into account the dynamics and issues associated with sexual assault in a family violence context may assist in reducing attrition in these cases. Consequently, in addition to recommending amendments to prosecutorial guidelines and policies, the Commissions recommend a range of other measures aimed at addressing this issue and reducing attrition of sexual assault matters.

26.99 The Commissions have identified best practice in the policies and guidelines of DPPs in dealing with sexual assault cases and have incorporated these into the recommendation below. To the extent that guidelines and policies in some jurisdictions already include those matters recommended, the Commissions suggest DPPs oversee the provision of ongoing training in relation to those existing obligations and processes as well as monitoring compliance.

26.100 Building upon this, case management or compliance monitoring mechanisms may be an important component of ensuring adherence to prosecutorial guidelines. For example, a joint Queensland Police Service and DPP Working Party has been created to examine individual failed sexual offence matters, in order to determine why matters fail and identify systemic issues contributing to such failures.^[141]

26.101 The Commissions are also of the view that the establishment of special victim and witness support, liaison and advocacy services within DPPs is desirable.

Additional measures to reduce attrition

26.102 Cultural and societal change is important to address high rates of attrition in sexual assault cases—along with other aspects of the ‘implementation gap’ identified and discussed in Chapter 24. In addition to amendments to prosecutorial guidelines and policies, a range of other measures could be implemented to reduce attrition and trauma to complainants during the prosecution phase.

26.103 Several such measures are discussed in other parts of this Report, for example:

• increased integration and cooperation between prosecution agencies, victim support services, and forensic services;^[142] and

• specialisation by relevant stakeholders, including specialist courts, prosecutors and judges, as well as the introduction or further utilisation of appropriate case management methods.^[143]

26.104 The importance of education and training is emphasised throughout this Report. In light of the specific dynamics of sexual assault, particularly in a family violence context, and in order to ameliorate some of the issues which have a particular impact on victims, the Commissions also recognise the need for training and education of those who engage with victims of sexual assault.

26.105 Training and education to be provided for police, the legal profession (particularly prosecutors and defence lawyers), judicial officers and victim referral and support services. The Commissions suggest that such training should encompass areas such as:

• myths and stereotypes surrounding sexual assault;

• understanding victims and the dynamics of sexual assault;

• the emotional, psychological and social impact of sexual assault on victims;

• barriers to recognising and reporting sexual assault;

• legislation and case law applicable in sexual assault cases;

• procedural and substantive provisions, rules and processes, for example in relation to the availability of special and protective measures in giving evidence; and

• the different experiences and needs of particular marginalised victims, such as people with a cognitive impairment, Indigenous people and those from CALD and GLBTI communities.

26.106 A range of bodies should be involved in providing this training and education, including the Australian and state and territory governments, legal professional organisations, judicial education bodies,^[144] and relevant service delivery organisations.

26.107 This recommendation is consistent with the recommendation in Time for Action for the development and implementation of a ‘national education and professional development framework’ in order to ensure that judicial officers, law enforcement personnel and other legal professionals have appropriate knowledge and expertise. Time for Action emphasised the need for a framework that recognises, and is developed in accordance with, the specific roles of these key actors and that is ‘informed by research on the social context … emphasises the diversity of experiences and needs of victims … and enhances understanding of the intent and operation of relevant legislation’.^[145]

26.108 Further, more community education in relation to sexual assault and, in particular, sexual assault committed in a family violence context, is desirable. Such education should focus on dispelling the myths and stereotypes surrounding sexual assault, the availability of avenues for reporting sexual assault, and support services for victims.^[146]

26.109 Finally, the Commissions emphasise the need for prosecution of sexual assault to occur in the context of a legal system which is alive to cultural and linguistic diversity, and the vital importance of culturally appropriate service provision. In particular, the Commissions strongly suggest:

• providing cultural awareness education and training for police, prosecutors, the legal profession, judicial officers, and victim referral and support services;

• prioritising the provision of, and access to, culturally appropriate victim support services, such as legal advice, counselling and other support services;

• ensuring the provision of professional translating and interpreting services where required and/or requested; and

• introducing or re-introducing Indigenous-specific victim liaison, support and advocacy positions throughout the legal system, including within the police, the courts and service providers.

26.110 The Commissions emphasise that Indigenous and CALD people must be given the opportunity to inform discussion surrounding which process and support mechanisms are most likely to assist victims of sexual assault from those communities.