The decision whether to commence or continue prosecution of sexual assault offences is a significant aspect of the criminal justice process. The DPPs in each jurisdiction exercise considerable discretion in deciding both whether to prosecute alleged offenders and how any such prosecution should proceed. This discretion is subject to prosecution policies or guidelines in each jurisdiction.
The available data appear to indicate that substantial numbers of sexual assault cases are discontinued by prosecutors—both before and after indictment. Many of these, perhaps up to half, are withdrawn because of the attitude of the victim. While some of these cases would also have encountered evidentiary issues—and hence may have been subject to ‘subtle’ encouragement to withdraw—others feared re-victimisation from the defendant or the court process, and it is likely many victims withdraw in the context of ongoing family violence.
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. The Commissions are interested in what steps should be taken to reduce the attrition of sexual assault cases during the prosecution phase, including in relation to sexual assault perpetrated in a family violence context.
It may be possible to identify best practice in the policies and guidelines of DPPs in dealing with sexual assault cases, including, for example, in relation to referral of victims and witnesses to relevant support services; consultation with victims in relation to prosecutorial decisions; and the provision of information and assistance more generally. The Commissions are especially interested to learn whether any policies, practices or guidelines should be introduced to deal with sexual assault perpetrated in a family violence context.
Proposal 17–2 Commonwealth, state and territory Directors of Public Prosecution should ensure that prosecutorial guidelines and policies:
- facilitate the referral of victims and witnesses of sexual assault to appropriate welfare, health, counselling and other support services;
- require consultation with victims of sexual assault about key prosecutorial decisions including whether to prosecute, discontinue a prosecution or agree to a charge or fact bargain;
- require the ongoing provision of information to victims of sexual assault about the status and progress of proceedings;
- facilitate the provision of assistance to victims and witnesses of sexual assault in understanding the legal and court process;
- ensure that family violence protection orders or stalking intervention orders are sought in all relevant circumstances; and
- require referral of victims and witnesses of sexual assault of victims to providers of personal legal advice in related areas, such as family law and victims’ compensation.