Part D of the Consultation Paper 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.
Chapter 15 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.
The chapter then introduces the response of the criminal justice system to the unique features of sexual assault, as well as the myths about women, children and sexual assault that continue to hold some sway in the community, and in the legal system. Key myths and misconceptions (frequently inter-related) include that:
- women and children are inherently unreliable and lie about sexual assault;
- the accusation of rape is easily made, but difficult to challenge;
- sexual assault is most likely to be committed by a stranger;
- women cannot be sexually assaulted by their spouse;
- some sexual assaults are more serious and damaging than others;
- non-consent is verbally articulated, evidenced by struggle and results in physical injuries; and
- a ‘true’ or ‘genuine’ victim of sexual assault does not delay in reporting.
The unique features of sexual offences include: the nature of the crime for the victim, the nature of the crime in terms of the elements that need to be proved and what this means for the content of the evidence that has to be elicited from the victim, the focus on credibility, the focus on consent in adult sexual assault matters, the length and nature of cross-examination, and the likelihood that there is some close relationship between the complainant and the victim (as current or former intimate partners or family members).
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.
Other areas of the law that also respond to sexual assault, including protection orders, family law, crimes compensation schemes and the law of torts are briefly discussed. 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.
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. It highlights the likely continued disjunction between the purpose and intention of legislation and its application in practice without extensive cultural change.
Chapter 15 is intended to provide general background information critical to a proper understanding of the criminal justice system’s response to sexual assault in the family violence context and does not contain any questions or proposals.