Time for Action drew attention to the important role that guiding principles can play in the interpretation of the law relating to sexual offences and in the application of the rules of evidence in sexual offence proceedings. Victoria is the only Australian jurisdiction which provides an objects statement and guiding principles in relation to sexual offences and related procedural and evidential matters.
The Commissions agree that these statements can perform an important symbolic and educative role in the application and interpretation of the law, as well as for the general community. While much more is required than simply a statement of guiding principles to change culture, it does provide an important opportunity for governments and legal players to articulate their understanding of sexual violence and a benchmark against which to assess the implementation of the law and procedure.
The objectives and principles articulated in the Victorian legislation are an instructive starting point for similar provisions in other jurisdictions. Other matters mentioned in Time for Action could be incorporated to provide a focus on particularly vulnerable groups of women and give sexual assault visibility as a form of family violence. Time for Action recommended that Indigenous women and women with intellectual disabilities should be specifically recognised as victims of sexual violence, and that there should be specific acknowledgement that sexual violence constitutes family violence—as it is precisely these cases that criminal justice systems deal with less effectively.
Proposal 16–6 State and territory sexual offences legislation should include a statement that the objectives of the legislation are to:
- uphold the fundamental right of every person to make decisions about his or her sexual behaviour and to choose not to engage in sexual activity;
- protect children and persons with a cognitive impairment from sexual exploitation.
Proposal 16–7 State and territory sexual offences, criminal procedure or evidence legislation, should provide for guiding principles, to which courts should have regard when interpreting provisions relating to sexual offences. At a minimum, these guiding principles should refer to the following:
- there is a high incidence of sexual violence within society;
- sexual offences are significantly under-reported;
- a significant number of sexual offences are committed against women, children and other vulnerable persons, including persons with a cognitive impairment;
- sexual offenders are commonly known to their victims; and
- sexual offences often occur in circumstances where there are unlikely to be any physical signs of an offence having occurred.
Question 16–8 Should such a statement of guiding principles make reference to any other factors, such as recognising vulnerable groups of women, or specifically acknowledging that sexual violence constitutes a form of family violence?