The implementation gap

24.96 Despite extensive changes to law and procedure, research continues to highlight a gap between written law and its practice—referred to as an ‘implementation gap’. This gap highlights the resistance to change evident in the legal system through its legal players who may still hold views about sexual assault characterised by myths and misconceptions. Some commentators question the over-reliance on, or confidence in, legislative change alone to bring about substantive changes for women and children as complainants in sexual offences.[150]

24.97 The VLRC reflected on this problem in its report on sexual offences, noting that:

The changes to procedure and evidence laws which are recommended in this Report are unlikely to be effective unless they are also accompanied by changes to the culture of the criminal justice system.[151]

24.98 The likely continued disjunction between the purpose and intention of legislation and its application in practice without extensive cultural change needs to be borne in mind.

24.99 The disjunction is not confined to Australia. Commentators in other countries have also noted the limits of focusing on changes to legislation alone to bring about substantive change to sexual assault trials, the experience of complainants in those trials, the rates of conviction and acquittal, and the need instead to focus on attitudinal and cultural change.[152] Cultural change requires general community education, education of police officers, lawyers and judicial officers, as well as changes to policies and procedures.

24.100 Time for Action noted that ‘enhanced community awareness and education programs are needed to change violence-supportive attitudes’.[153] The report recommended a range of measures to strengthen community leadership, awareness and understanding of sexual assault and family violence; and to promote positive male behaviours.[154]

24.101 Community attitudes also determine the legal system’s response to sexual assault complaints. The key players in the legal system—police, lawyers, judicial officers, jury members—are also members of the general community (as are journalists), frequently sharing the same attitudes and beliefs about sexual assault, who perpetrates it, and who can be a victim. While there has been great progress in community attitudes about violence against women—including sexual assault—there are still a number of resilient myths in currency.

24.102 If key legal players also subscribe to some of these community attitudes and myths, the implementation of reform is hampered.[155] For example, one stakeholder referred to the difficulties in challenging the ‘dominant’ culture of the legal profession with its ‘emphasis upon the rights of the accused’ and asked

how do you open up the psyche of a judge, immersed within the culture of legal professionals, who remains immovable in a personal opinion and outdated knowledge that influences their professional judgments and then remains unaccountable for reprehensible decisions that are being made right now?[156]

24.103 Time for Action included recommendations intended to ensure that judicial officers, law enforcement personnel and other professionals within the legal system have appropriate knowledge and expertise. These included the development and implementation of:

a national education and professional development framework that recognises the specific roles and functions of police; prosecutors; defence counsel; family and migration lawyers; legal advisers; court staff and the judiciary.[157]

Judicial and legal education

24.104 The National Council also recommended the production of a model Bench Book, in consultation with jurisdictions, and as part of a national professional development program for judicial officers on sexual assault and family violence. This Bench Book would ‘provide a social context analysis and case law to complement existing resources and enhance the application of the law’.[158] Specialist sexual assault bench books have been developed by the Judicial Commission of New South Wales[159] and the Judicial College of Victoria.[160]

24.105 The need for judicial education in relation to dealing with sexual assault cases is highlighted in different contexts in the following chapters. For example, judicial and practitioner education on the ‘nature of sexual assault, including the context in which sexual offences typically occur, and the emotional, psychological and social impact of sexual assault’[161] may be needed in relation to decisions about jury warnings on the effect of delay on the credibility of complainants. Similarly, there may be a need for guidance on expert opinion about children’s responses to sexual abuse and their reliability as witnesses; and the admission of evidence about a complainant’s prior sexual activity.[162]In Chapters 26 to 28, the Commissions make a number of recommendations for the development and provision of education and training in relation to the response of the criminal justice system to sexual assault. In Chapter 31 the Commissions recommend the development of a national bench book for judicial officers dealing with family violence and sexual assault.

24.106 More generally, the need for a ‘common knowledge base’ of family violence has been identified by the Family Law Council.[163] For this purpose, the Council has recommended that an expert panel be established that ‘considers research, distils accepted opinions, and agrees on information that should be included in the common knowledge base’.[164] Such a centralisation of information attached to a specific judicial education or other body (such as the Australian Institute of Family Studies) could support consistency and improved legal responses. Judicial officers, prosecutors, defence lawyers, police and others involved in the criminal justice response to sexual assault in the family violence context might all be better informed.

[150] See, eg, R Graycar, ‘Frozen Chooks Revisited: The Challenge of Changing Law/s’ in R Hunter and M Keyes (eds), Changing Law: Rights, Regulation and Reconciliation (2005) 49; J Stubbs, ‘Sexual Assault, Criminal Justice and Law and Order’ (2003) 14 Women Against Violence 14, 14; J Bargen and E Fishwick, Sexual Assault Law Reform: A National Perspective (1995), prepared for the Office of the Status of Women, 7–8.

[151] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), xxiv.

[152] In South Africa, see C van der Bijl and P Rumney, ‘Attitudes, Rape and Law Reform in South Africa’ (2009) 73 Journal of Criminal Law 414. In the UK, see J Temkin and B Kráhe, Sexual Assault and the Justice Gap: A Question of Attitude (2008); P Rumney, ‘The Review of Sex Offences and Rape Law Reform: Another False Dawn’ (2001) 64 Modern Law Review 890. In Canada, see M Randall, ‘Sexual Assault in Spousal Relationships,“Continuous Consent” and the Law, Honest but Mistaken Judicial Beliefs’ (2008) 32 University of Manitoba Law Journal 144.

[153] National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009), 49.

[154] Ibid, 50–51.

[155] In its final report the VLRC noted that some police ‘are influenced by common myths surrounding sexual assault and the behaviour of victims’: Victorian Law Reform Commission, Sexual Offences: Final Report (2004), xxii.

[156] T Searle, Submission FV 108, 2 June 2010.

[157] National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009), 121.

[158] Ibid.

[159] Judicial Commission of New South Wales, Sexual Assault Handbook (2009) <www.judcom.nsw> at 14 April 2010.

[160] Judicial College of Victoria, Sexual Assault Manual (2008) <
publications/sexual-assault-manual> at 21 February 2010.

[161] See Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [18.173].

[162] See Ch 27.

[163] Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), 38. The principal recommendations are noted in Ch 1.

[164] Ibid, 38.