Conventional and innovative justice responses to sexual violence
ACSSA Issues No. 12, 2011
Part I. Sexual assault law reform
The promise of legal reform
During the 1970s and 1980s, spurred by feminist advocacy on behalf of victims of gendered violence, extensive reform of rape law occurred in many Western countries. This process began in the 1970s in the United States and Australia, and in the early to mid 1980s in Canada and New Zealand. Reform has been more piecemeal in England and Wales, and it was not until 2003 that comprehensive rape law legislation was enacted. In Scotland, it has yet to be enacted.
Legal reform varied in intensity and scope in Australian states and territories. However, the focus was to shift attention away from the victim’s character to the offender’s behaviour, eliminate the witness corroboration rule and other physical evidence requirements to prove non-consent, and broaden the definition of rape and sexual intercourse. Rape shield laws were enacted to restrict the introduction of evidence at trial about a victim’s past sexual history. The definition of rape was expanded from a single offence (vaginal intercourse with the penis) to a series of graded offences, associated with aggravating circumstances and acts. Sexual intercourse was broadened to include oral and anal penetration, and marital rape was criminalised in all jurisdictions. Comprehensive changes were introduced in New South Wales in 1981, in the Australian Capital Territory in 1985, and in Victoria in 1991 (see reviews by ACT Office of the Director of Public Prosecutions and Australian Federal Police [ACT ODPP & AFP], 2005, pp. 4–7; Bargen & Fishwick, 1995; Heath, 2005). Legal reforms were accompanied by changes to administrative procedures and services for victims. Police officers began to receive training in sexual assault investigation and in assisting victims, and supports for victim/survivors were established.
Limits of legal reform
During this initial phase, optimism prevailed that legal reform would change the landscape of police and criminal justice responses, make the system more efficient (e.g., lead to higher convictions), and enhance positive experiences for victims. This did not occur. Older practices continued despite legal change.3 Reviewing the impact of legal reform in the United States, Koss (2006) observed that although feminist and victim social movements “achieved spectacular success by the standards of social change” (p. 217), legal reforms had little or no impact on rates of prosecution and conviction. Some believe that reforms may have had some educative impact on judges and lawyers (Spohn & Horney, 1992), but the most significant impact appears to have been on victim/survivors, who began to report sexual victimisation more often.
A five-country study of attrition
One key measure of the impact of law reform is to look at case progression and conviction rates for rape. In a recent comparative analysis of five jurisdictions, a colleague and I analysed the attrition of cases from the criminal justice system, utilising data from 1970 to 2005 in Australia, Canada, England and Wales, Scotland, and the United States (Daly & Bouhours, 2010).4 Seventy-five unique studies of rape case attrition were analysed. We found that of cases reported to the police, the overall rate of conviction was 15% to any sexual offence, and 9% to the original offence charged by the police. We also found temporal variation in the conviction rate. Of offences reported to the police, there was a statistically significant decline in the conviction rate to any sexual offence: from 18% in an earlier period (1970–1989) to 12.5% in a later period (1990–2005). The largest decrease in conviction rates occurred in England and Wales (from 24 to 10%) and to a lesser degree, Canada (26.5 to 14%). The decrease was more moderate for Australia (from 17 to 11.5%). By comparison, in the United States, there was no change (13 to 14%). In the later period, there is a remarkable convergence of average conviction rates in common law5 countries: they range from 10% to 14%.6 Confirming this pattern, a New Zealand study carried out after our review found that of sexual violation offences reported to the police in 2005–07, 14% resulted in a conviction to any sexual offence (Triggs, Mossman, Jordan, & Kingi, 2009, p. vii).
The reasons for the decline in conviction rates can be understood once we see how the attrition process works. The next section shows where cases are filtered out of the legal process, using data from Australia, and discusses why this occurs.
The journey of 100 cases
Drawing from Australian victimisation surveys and findings from Australian attrition research, the journey of 100 cases reported to the police is shown in Figure 1. Of 100 cases, 20 proceed past the police and prosecution and are adjudicated in court, 3.5 go to trial and are convicted, 8.5 are acquitted or the case is withdrawn. Of the 11.5 convicted defendants, 4.5 receive a prison sentence, although there is insufficient evidence to say if any incarceration time was served. Put another way, for 88.5 out of 100 Australian victims who report a sexual assault to the police, their case is not proceeded with by the police or prosecution; or it is dismissed, withdrawn, or acquitted, once in court. Therefore, for almost nine out of 10 sexual assault victims, no formal legal redress occurs.
For the factors associated with cases proceeding past the police or prosecution and with court conviction, Daly and Bouhours (2010) found that the presence of evidence (forensic or witness evidence, visible victim injury, and weapon use) is strongly associated with the likelihood of conviction in both the earlier and later time periods. At the same time, the factors associated with a victim’s character and credibility, which were strongly associated with conviction in the early period, deceased in importance in the later period.7 These findings for a victim’s character may initially seem to be contrary to research on rape trials (NSW Department for Women, 1996; Temkin & Krahé, 2008), which have found that the trial centres on a victim’s sexual reputation and credibility more often than on evidence factors. However, the sample of studies in Daly and Bouhours (2010) included both trials and pleas (about two-thirds of convictions were by guilty plea); and it is in the trial context that a victim’s character and credibility is most closely scrutinised.
This occurs because legal officials, along with other members of society, can have negative stereotypes of rape victims, holding them responsible for victimisation, unless the assault contexts and elements conform to the “real rape” stereotype (stranger relations, visible physical injury, weapon use) (see Estrich, 1987; Lievore, 2004; Temkin & Krahé, 2008). The same mindset was evident in analyses of rape case law during the 19th and mid-20th centuries (see Estrich, 1987); it was documented in a socio-legal study of judge and jury decisions in rape cases in the 1950s (Kalven & Zeisel, 1966); and it continues to be evinced in research on victims in the legal process. When a reported assault is not congruent with the “real rape” elements, attention is drawn to a victim’s character or credibility.
Drawing from Spears and Spohn (1996), reputedly “genuine” victims have good moral character (e.g., no history of drug or alcohol use, previous offending, or working in the sex industry); do not engage in risk-taking behaviour before the offence (walking alone at night, hitchhiking, at a bar alone, going home with an offender); scream and physically resist an assault; and report it right away.
One significant effect of legal reform has been that victim/survivors of non-stranger sexual assault (i.e., known assailants) are more likely to report the offence. Over time, from studies in Australia and elsewhere, we have seen a shift in the proportion of sexual assaults by unknown assailants reported to the police: from nearly 50% in an earlier period (1970–1989) to about 25% in a more recent period (1990–2005) (Daly & Bouhours, 2010, p. 576). Heenan and Murray’s (2006) research in Victoria found the stranger rape share to be even lower: 16% of cases reported to the police. Likewise, Harris and Grace’s (1999) analysis of British data found that the stranger share of cases reported to the police was 12%. It is little surprise that victims’ experiences with and judgments of the criminal process are not positive.
Figure 1: Journey of 100 cases reported to the police in Australia, 1990-2005
Note: This diagram is based on four Australian victimisation surveys and attrition estimates from 12 Australian studies utilising data for 1990 to 2005 (100 cases = 100% of cases reported to police).
Limits of legal reform: victim/survivors in the criminal justice process
Research on victims’ experiences with the legal process in common law countries like Australia (ACT Victims of Crime Coordinator, 2009; Fawcett Commission on Women and the Criminal Justice System, 2009; NSW Violence Against Women Specialist Unit, 2006; Regehr, Alaggia, Lambert, & Saini, 2008) and civil law countries (Bacik, Maunsell, & Gogan, 1998) shows that, despite legal and procedural reforms, victim/survivors are dissatisfied with the criminal justice system.
Drawing from the ACT Victims of Crime Coordinator (2009), NSW Violence Against Women Specialist Unit (2006), and Bacik et al. (1998), sexual assault victim/survivors report a lack of sufficient information on procedures and the progress of their case. Lengthy delays in the court process are distressing, and some withdraw their complaint to deal with the assault emotionally. Although victims tend to have a more positive perception of the police, this perception changes when their case is referred for prosecution. The shift in status from being a victim to being a witness is disempowering and confusing (ACT Victims of Crime Coordinator, 2009). Many feel unprepared for court and think that the process of cross-examination is abusive, particularly when they have to give evidence both at committal and at trial. Many wish they had been consulted about the decision to downgrade the charges or drop the case, although most believe that the decision should be left to the prosecution.
By comparison, sexual assault victims in civil law countries are said to have more positive experiences with their legal representatives, who offer support and provide information and advice (Bacik et al., 1998). Such legal support is absent in common law countries like Australia, but there is interest to consider it (Raitt, 2010).8
The ACT Victims of Crime Coordinator (2009) found that many victims are disappointed with the outcome of the case either because it is not prosecuted or does not result in conviction. However, even when there is a conviction, a large share feels dissatisfied with and traumatised by their treatment in court. They report that they are not believed, there is too much focus on their behaviour, and their complaint is not taken seriously enough.
More legal reform?
Since 2000, most Australian states and territories have conducted reviews and produced discussion papers on better ways to respond to adult victims of rape and sexual assault, including more effective legal mechanisms. These include:
- Australian Capital Territory (ACT ODPP & AFP, 2005; ACT Victims of Crime Coordinator, 2009);
- New South Wales (NSW Attorney General’s Department, 2006; NSW Violence Against Women Specialist Unit, 2006);
- Queensland (Crime and Misconduct Commission, 2003, 2008);
- South Australia (Chapman, 2006);
- Victoria (Victorian Law Reform Commission, 2004); and
- Western Australia (Community Development and Justice Standing Committee, 2008).9
In 2009, Time for Action, a plan directed to the Australian Government by the National Council to Reduce Violence Against Women and Their Children (2009a), was released, and the Australian Government has since developed a plan in response to the council’s report, in which effective justice responses is a core outcome area (Council of Australian Governments, 2011). Similar government reviews have also occurred in New Zealand (New Zealand Ministry of Justice, 2008) and England and Wales (Government Equalities Office, 2010).
These reviews take stock of the impact of legal reform and consider further areas for reform. They give insight into what victims are seeking in the legal process, the problems they continue to face, and what further steps should be taken. Although more legal reform often takes centre stage in these reviews, one also sees openness to considering alternatives. For example, New Zealand’s Ministry of Justice (2008, pp. 13–14, 18–19) discussion paper considered the strengths and limits of changing definitions of consent, along with related statutes concerning a defendant’s “reasonable belief” in consent, both of which are key questions for sexual assault law reform. However, the paper warned that “there are dangers in expecting too much from changing the law, when attitudes and behaviours need to be addressed more generally … [The law] is a fairly blunt instrument for [changing attitudes] without other supporting educative and social measures” (p. 14 & 19).
For some time, governments and policy makers have recognised a pressing need to do something to improve police and court outcomes and victims’ experiences. This is evident in the many inquiries and reviews that have been undertaken, not for the first time, but repeatedly, in many jurisdictions in Australia and elsewhere. However, cultural beliefs about gender and sexuality continue to undermine the intentions of legal reform. These beliefs affect victims adversely, but at the same time, further criminalisation and penalisation of offenders is not likely to yield constructive outcomes, either in reducing the incidence of sexual assault or changing these beliefs. The criminal justice system, as currently constituted, is poorly suited to the tasks of changing behaviour and beliefs. To reduce the incidence of sexual assault and change beliefs, educational campaigns are preferable to increasing criminalisation and punishment (Carmody & Willis, 2006; Temkin & Krahé, 2008). There is growing critique about the utility of heavily punitive responses to sex offenders such as sex offender registries, community notification, residential restrictions, satellite tracking, and post-sentence detention (e.g., Brown, 2008; McSherry & Keyzer, 2009; Ward, Gannon, & Birgden, 2009). If achieving justice for victims is not likely to be met by more legal reform or by punitive responses toward offenders, we require new and more imaginative ways of addressing the problem.
Victims’ justice needs and the potential of innovative justice responses
Innovative justice responses, as defined in this paper, are concerned with making the legal and social response to rape more accountable and accessible to victim/survivors. They address J. Herman’s observation that the “needs of victims are often diametrically opposed to the requirements of legal proceedings”:
Victims need social acknowledgment and support; the court requires them to endure a public challenge to their credibility. Victims need to establish a sense of power and control over their lives; the court requires them to submit to … rules and … procedures that they may not understand … Victims need an opportunity to tell their stories in their own way, in a setting of their choice; the court requires them to respond to a set of yes–no questions [that does not reflect] a coherent and meaningful narrative. Victims often need to control or limit their exposure to specific reminders of the trauma; the court requires them to relive the experience. Victims often fear direct confrontation with their perpetrators; the court requires a face-to-face confrontation. (J. Herman, 2005, p. 574, emphasis added)
Herman’s ideal justice model, from a victim’s perspective, includes social acknowledgment, a sense of control, an opportunity to tell one’s story, not having to continually relive the crime, and not being required to confront a perpetrator directly.
Koss (2006) contrasted a victim’s survival needs (e.g., their physical and mental health, housing, employment, education) and their justice needs, which include:
[a] desire to tell their story, be heard, have input into how to resolve the violation, receive answers to questions, observe offender remorse, and experience a justice process that counteracts isolation. (pp. 208–209)
The view reflected here is that justice needs are not likely to be met by current criminal justice responses. It seems imperative then to review and assess innovative mechanisms for achieving the social acknowledgement, validation, and redress of harm that victim/survivors currently seek. The following section provides an overview of 48 practices and approaches designed to improve the justice response to sexual assault for victim/survivors.
Footnotes
3 In Australia and New Zealand, see Brereton, 1994; Heath & Nafine, 1994; Jordan, 2001, 2004; Lievore, 2004; Mossman, Jordan, MacGibbon, Kingi, & Moore, 2009; and NSW Department for Women, 1996. In the United States, see Spohn & Horney, 1992. In England and Wales and Scotland, see Brown, Burman, & Jamieson, 1993; Burman, Jamieson, Nicholson, & Brooks, 2007; Kelly, 2001; Kelly, Lovett, & Regan, 2005.
4 In Daly and Bouhours (2010), two data periods were created to determine if there was change in the estimates of conviction over time. The year of data gathering in the 75 studies ranged from 1970 to 2005. The estimates of conviction clustered in two phases: earlier (1970–1989 data) and later (1990–2005 data). These two phases also corresponded to older and newer ways of researching sexual victimisation. It seemed logical to use these indicators to draw a temporal line in the analysis. The earlier and later phases do not coincide with pre- and post-legal reform because all countries had some type of legal reform by the end of the 1980s, although some had gone substantially further than others. Rather, the more recent period (1990 forward) can be viewed as a time when legal reform matured, when there was a more developed consciousness by victims (and by victim support groups) of expanding definitions of rape, and when more research attention was given to sample surveys of victimisation, using more sensitive methods.
5 A distinction exists between “common law” and “civil law” countries, although some countries (such as Germany and Japan) combine elements of both. Australia, Canada, England and Wales, Scotland, New Zealand, and the United States are based on English Common Law; most continental European countries such as France, The Netherlands, Spain, Italy etc., are civil law countries. These differences also apply in countries that were once colonies of European powers. Historically, common law was developed by custom and “case law” (judicial decisions in individual cases), beginning before there were written laws and applied by courts after there were written laws. Civil law countries take their tradition from Justinian Roman law. In the modern period this has translated into jurisprudential differences: in civil law countries, legislation is seen as the primary source of law. Courts therefore base their judgments on the provisions of codes and statutes, from which decisions in particular cases are derived. By contrast, in the common law system, cases and judicial interpretation about legal principles are a primary source of law. Civil and common law systems also differ in criminal procedure. In general, the judge in civil law systems plays an active supervisory role in case investigation, whereas in a common law systems investigation is the responsibility of police and prosecutors, and the judge’s role is to adjudicate impartially on the evidence and arguments introduced in court by the prosecution and the defence. These are broad generalisations, and many exceptions can be found. Note that this common law/civil law distinction should not be confused with differences between branches of law within a country (i.e., criminal law, which handles “public” harms and wrongs in which the state sees itself as the victim; and civil law, which handles “private” harms and wrongs between individuals or organisations, and in which a plaintiff sues a defendant for damages or some other compensation or remedy.
6 This range excludes Scotland, whose conviction rate of 17.5% is based on just three cases.
7 In addition, stranger victim–offender relations are strongly associated with conviction in the early period, but decrease in importance in the later period.
8 See footnote 5 for detail on the distinction between civil and common law.
9 In the Northern Territory, attention was directed to child sexual abuse in Aboriginal communities, with the Little Children are Sacred report (Wild & Anderson, 2007). Tasmania conducted a review of rape and sexual assault in 1998 (Task Force on Sexual Assault and Rape in Tasmania, 1998).